Opinion
D072586
02-15-2018
In re Y.E. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.E., Defendant and Appellant.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. J518737A-C) APPEAL from orders of the Superior Court of San Diego County, Michael Martindill, Juvenile Court Referee. Affirmed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
M.E. appeals juvenile court orders terminating her reunification services at the 12-month permanency planning hearing under Welfare and Institutions Code, section 366.21, subdivisions (f) and (g) concerning her daughters, Y.E., L.E., and I.E. M.E. contends: (1) insufficient evidence supports the court's finding that the San Diego County Health and Human Services Agency (the Agency) provided her reasonable reunification services, and (2) the court erroneously found there was no reasonable probability the children would return to her by the 18-month review. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In a first dependency case, the three girls were removed from their parents' care in July 2013 because I.E.'s father sexually abused I.E. M.E. participated in conjoint therapy, psychiatric treatment, and other family counseling programs. The children were returned to M.E.'s care and jurisdiction was terminated in March 2016.
The children's father is not a party to this appeal; therefore, we only briefly mention him where relevant.
The present dependency case started one month later, in April 2016, after the children's cries for help from inside their residence attracted someone's attention. M.E. refused to open the door for police, who forcibly entered. M.E. grabbed a handful of L.E.'s hair, causing the girl to cry. M.E. refused multiple police orders to let go, and police had to forcibly separate M.E. from the girl. The children had not eaten the entire day and there was no food in the residence. Police detained M.E.
The Agency petitioned under section 300 subdivision (b) on behalf of the children, alleging M.E. was incapable of caring for the children due to her mental illness that included bipolar disorder. In the past year, she had been twice committed to a mental health facility on section 5150 holds.
Section 5150 provides: "When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment, member of the attending staff, as defined by regulation, of a facility designated by the county for evaluation and treatment, designated members of a mobile crisis team, or professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services."
At the June 2016 jurisdictional/dispositional hearing, the juvenile court found true the petition's allegations, declared the children dependents of the court, ordered them removed from parental custody and placed in foster care, and ordered reunification services for the parents. M.E.'s case plan included individual therapy, conjoint therapy with the children, psychotropic medications, compliance with all psychiatric appointments, parenting education, and substance abuse testing.
The court held a hearing regarding whether M.E. was compliant with her psychiatric treatment and medications. Later, upon learning M.E. had resumed using illegal drugs, the court approved an outpatient substance abuse treatment program as part of her case plan.
On December 23, 2016, M.E. started unsupervised visits with the girls. However, in the second week, M.E. took the girls to a recycling center, which was an unauthorized meeting place. During the third week, M.E. did not pick up the girls after school as scheduled, causing them to become afraid. The caregiver had to pick them up. M.E. explained that she had to work that day and therefore was unable to pick them up. The Agency promptly discontinued M.E.'s unsupervised visits.
At the six-month review hearing on February 2, 2017, the court ruled the Agency was providing services to M.E., who had made moderate progress on her case plan. It ordered the children remain in their placement, parental visitation be frequent and supervised, and the parents receive additional reunification services.
In February 2017, M.E. tested positive for methamphetamine. She failed to attend two random drug tests in January and May 2017. In May 2017, she was discharged from a drug rehabilitation program after she refused to sign their contract. M.E. later said she did not sign it because she "just ha[d] other things going on." Although shortly afterwards M.E. tried to reenroll, the program denied her application. A couple of weeks afterwards, M.E. told her counselor at the rehabilitation program that the social worker had said M.E. could reenroll. When the counselor checked into the matter, the social worker told the counselor: "No, I didn't say that [M.E.] can . . . call you to reenroll right away. I told her she's going to have to wait on—she's going to have to follow the recommendations that you gave her." From May 2017, M.E. had not participated in Narcotics Anonymous (NA) or a similar program until approximately July 19, 2017, when she reenrolled in the same rehabilitation program.
On May 23, 2017, the girls' therapist advised against M.E. having conjoint therapy with the children, reasoning it would do more harm than good: "The children would only be re-traumatized and the children have made progress therapeutically so we wouldn't want them to regress." The Agency did not refer M.E. for parenting education because the social worker had planned on doing so about 30 days before the children returned to her care; however, it never had occasion to implement that plan because of its later recommendation to terminate services for M.E.
In a June 2017 status report, the social worker listed the services M.E. was receiving: case management, referrals to community services, crisis intervention, monthly compliance visits, and monthly transportation. M.E. had attended 30 individual therapy sessions and had one excused absence. M.E. stated she was keeping her doctor appointments and taking her medications.
The social worker stated that Y.E., the oldest daughter, was 11 years old and getting straight A's in middle school. She liked her current placement with her caregiver, where she felt safe and comfortable. Y.E. said she would not feel safe to return to live with her parents. Y.E. also worried about M.E.'s well-being and thought she might not be taking her medications. The Agency recommended termination of reunification services for M.E., concluding that she was not utilizing all services to successfully reunify with her children: "There still remains [sic] safety and risk factors since [M.E.] discharged from outpatient substance abuse treatment. [M.E.] needs to actively participate and complete in [sic] substance abuse treatment. The risk remains high that the children would be neglected due to [M.E.'s] inability to manage her mental health and drug abuse problem."
The social worker also reported that the youngest daughter, I.E., continued to struggle with depression and anxiety, leading to her having tantrums and isolating herself from the rest of the family. I.E. was diagnosed with posttraumatic stress disorder (PTSD) and was receiving therapy and medication to address incidents of sexual abuse by her father. I.E. reported that recently M.E. appeared depressed.
At the end of June 2017, M.E. cancelled a visit with the girls, but showed up unannounced at the caregiver's house, calling for Y.E. and shouting from outside, "I'm ok I'm ok. Don't worry about me." She then left. This made the three girls nervous and worried. M.E. also telephoned the caregiver and left a message stating: "I just want the girls to be ok. I don't know what is happening; something terrible happened in my house." That statement made no sense to the caregiver, who believed M.E. was hallucinating.
The social worker discussed this incident with M.E., who said, "I have not seen Y.E. so I wanted to talk to her." The social worker told M.E. that Y.E. did not want to visit her or receive her phone calls, and the Agency could do nothing about that until Y.E. changed her mind.
A court-appointed special advocate (CASA) reported on June 21, 2017, that M.E. had impugned the caregiver's motives for wanting to care for the girls in conversations with them. M.E. also told the girls no one would want to adopt them; therefore, it would be best for them to return to living with her. The caregiver described M.E.'s last three visits with the children: "[A]t one visit [M.E.] was asleep, at another she cried the whole time, and at the last she had not taken her medications, so she spent the visit talking incoherently to herself." The CASA also reported that M.E. did not show up for several random drug tests in May and June 2017.
At the 12-month review hearing on August 4, 2017, the social worker confirmed that as recently as two months earlier, M.E. had spoken negatively to the girls about the caregiver.
Elaine Ocampo, a psychiatric nurse, testified she had given M.E. adequate medication refills. M.E. had made a treatment plan and would notify nurse Ocampo or the pharmacy if she was running low on medications. Further, M.E. agreed to attend appointments for medication management and NA meetings. M.E. also would consult nurse Ocampo if she experienced certain specified symptoms. M.E. identified friends who would support her. In an emergency, M.E. planned that if her situation worsened she would go to the emergency room or call the crisis hotline or 911.
Psychologist Lorena Aguila testified she had worked with M.E. to ensure she had enough medications: "[M.E. is not] insured and finances were tight. She was able to find a clinic that was . . . affordable. She worked with the provider there." Dr. Aguila helped M.E. develop a plan to obtain medications in an emergency. Dr. Aguila also helped M.E. see the connection between her psychological distress and her substance abuse so that M.E. could use other coping tools such as calling her sponsor, talking to a therapist, and going for a walk.
M.E. testified she knew she was not supposed to visit the caregiver's residence, but nevertheless she did so because she wanted to hear Y.E. explain her refusal to attend the visits.
After considering the evidence and counsel's arguments, the juvenile court found the Agency had provided M.E. reasonable services. It terminated M.E.'s services and denied reunification. Acknowledging that M.E. consistently and regularly visited the children, it nevertheless pointed out that except for a brief period six months earlier, M.E. never progressed from unsupervised to supervised visits. In summarizing this case's three-year history, including the first dependency petition, the juvenile court stated: "So the best I can find is that [M.E.] has made . . . some progress in resolving the issues, but only some. The substance abuse part of her case plan is marginal. [¶] If we look at the other issues related to her mental health, and we did hear from her education provider, as well as her therapist, those reports and that testimony indicated that [M.E.] was making progress on track, but then I read the social worker's report regarding the incident that occurred in June, where [M.E.] just showed up unannounced and inappropriately attempted to make contact with her . . . oldest daughter. [¶] That's just—that incident is totally contrary to where this case should have been proceeding and causes me great concern with all of the help and all of the services that [M.E.] had received in the prior case. And then with all of the help, all the services and the time and patience of everyone in the present case, that an incident like that would occur or reoccur. [¶] I find that [M.E.] has not demonstrated the capacity and ability to complete the objectives of her case plan to provide for the children's protection, well-being and needs. There is not a substantial probability of . . . return of the children to [her] by the 18-month review date. I order that reunification services for [her] be terminated. It is in the best interests of the children to have a stable and safe future. And I do not find that additional services to [M.E.] would assist in that. [¶] I find that the children's current placement . . . is appropriate. Dependency is continued. Care, custody and control of the children remain vested with the Agency."
The court found the Agency had not provided father with reasonable services; therefore, it ordered services for him extended until the 18-month review.
DISCUSSION
I.
The Agency Provided M.E. Reasonable Services
M.E. contends insufficient evidence supported the juvenile court's decision to terminate her reunification services at the 12-month permanency planning hearing upon its finding the Agency had provided her reasonable reunification services. She specifically argues the Agency failed to provide reasonable services relating to her mental health because it only provided her individual therapy sessions and appointments with a psychiatric nurse practitioner but failed to "address her challenges in accessing her medication due to financial constraints and in otherwise taking her medication." M.E. further contends, the Agency did nothing "to ensure she took her medication as prescribed (e.g., setting an alarm to remind her or having a friend check in with her)." M.E. argues the Agency failed to provide her with reasonable substance abuse services despite learning "about [her] discharge from her program on May 16, 2017[,] and her desire to re-enroll on the following day"; rather, it "prevented her from re-enrolling in that program by informing the program it need not re-enroll her"; M.E. challenges the Agency's failure to begin conjoint therapy with the children. Finally, M.E. faults the Agency for not submitting a referral for her to receive parenting education.
We conclude that to the extent M.E. failed to raise these specific claims regarding the Agency's purported failure to provide her reasonable services in the juvenile court, the claims are forfeited on appeal. A parent who fails to raise critical issues below cannot raise them for the first time in the appellate court. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [a contrary rule would allow a party to trifle with the court, permitting him to deliberately stand by silently, permit the proceedings to reach a conclusion, and then acquiesce if favorable or object if not].) "[A] parent [may not] wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing." (Los Angeles County Dept. of Children Etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.)
At the 12-month permanency planning hearing, the issue of the reasonableness of the Agency's services was raised only as to the children's father. The Agency recognized that it had not sufficiently indicated to him a homework he needed to complete in his sex abuse treatment. Accordingly, it requested that the juvenile court extend his services until the 18-month date. Notwithstanding that father earlier squarely raised this issue in the same proceeding, M.E. did not similarly claim that the Agency failed to provide her reasonable services. To the contrary, her counsel affirmed that M.E. was able to access all services. Recognizing M.E. was not prepared for reunification with the children at the 12-month hearing, he sought extension of services to M.E. until the 18-month review: "At this point, the Agency needs to show by a preponderance that the children cannot be returned to [M.E.] at this time, and that's not my real argument and [M.E.'s] real concern at this point. We understand that [M.E.] is continuing to work on her services. . . . [¶] The real issue that [M.E.] is arguing today, Your Honor, is to continue those reunification services, to allow [her] to continue to build upon the progress that she's already made to put herself in a position where she can have the children placed in her care at the 18-month point."
M.E.'s counsel further argued she had access to all the services she needed: "Now the 18-month point, as pointed out, is in October. It's only a few months away. And I understand the compression and the time that the Court is looking at. But the bottom line, Your Honor, is that these parents have already knocked off a lot of problems that other parents have to deal with. They have an income, they have housing, they have a support system. They certainly know how to understand and reach out and gain all of the services that are available throughout the community." M.E. may not claim in the juvenile court that she was not ready for reunification and that she had all the services needed and turn around and claim on appeal that she lacked services.
In any event, M.E.'s claims fail on the merits. A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The petitioner bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
In reviewing a challenge to the sufficiency of reunification services, our role is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) "[T]his court must view the evidence in a light most favorable to the [Agency]. We must indulge in all reasonable and legitimate inferences to uphold the judgment. [Citation.] 'If there is any substantial evidence to support the findings of a juvenile court, a reviewing court is without power to weigh or evaluate the findings.' " (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361-1362) "Services will be found reasonable if the [Agency] has '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.' " (In re Alvin R. (2003)108 Cal.App.4th 962, 972-973.) In assessing the reasonableness of reunification services, the juvenile court evaluates not only the Agency's efforts to assist the parent in accessing the services, but also the parent's efforts to avail himself or herself of the services. (In re Ronell A., at p. 1365.) A service plan must take into account the family's specific needs. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
We conclude substantial evidence supports the finding the Agency made timely efforts to provide M.E. with appropriate services tailored to her needs to aid her in becoming an adequate parent to her daughters. The social worker prepared a case plan that provided for her psychological evaluation, psychotropic medications, individual therapy and drug rehabilitation. The social worker met with M.E. and the children multiple times. M.E. failed several drug tests and did not complete the drug rehabilitation program.
M.E.'s arguments that the Agency failed to ensure she took her medications as prescribed or address her challenges in accessing her medications due to financial constraints are unfounded. M.E. testified at the contested 12-month hearing that she took her medications as prescribed, had an adequate supply of medications, and knew how to refill her prescriptions in case she ran out. Moreover, both Dr. Aguila and nurse Ocampo testified they helped M.E. understand the importance of her taking her medications, her need to plan for the eventuality that she might require medications, and how to access refills. If M.E. failed to take her prescription medications, it was not for lack of effort by the Agency, the therapist and the psychiatric nurse. A parent's problems do not excuse him or her from participation in a reunification plan. (Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762.)
The record does not support M.E.'s claim that the Agency failed to provide her with reasonable substance abuse services by "preventing" her from reenrolling in the drug rehabilitation program. Rather, M.E. precipitated the problem by her lack of compliance and her later unwillingness to sign the contract. Although the social worker supported M.E.'s decision to reenroll, the drug treatment counselor said M.E. would have to wait. The social worker merely deferred to that recommendation. "Reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent." (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.)
M.E.'s argument that the Agency made virtually no effort to begin conjoint therapy is meritless. The timing of the conjoint therapy was critical and it was inopportune for the Agency to schedule it when the oldest daughter was not interested in speaking to M.E. and the youngest daughter was still coping with the effects of PTSD. The Agency reasonably deferred to the children's therapist on the timing.
M.E. also faults the Agency for failing to refer her to parenting education. The Agency explained it planned to offer M.E. that service when the children were close to being returned to her care. That decision was reasonable because the lessons would be more efficacious during a time when M.E. was on the verge of implementing the lessons upon reunification. However, the issue of the parenting education classes became moot when M.E. failed to satisfy the requirements for reunification.
II.
The Juvenile Court Did Not Err by Terminating M.E.'s Services
M.E. contends the juvenile court erred in finding there was no substantial probability of the children's return to her by the 18-month review and terminating her services. She emphasizes she consistently and regularly visited the children and called them, made significant progress in resolving the issue that led to their removal especially by participating in mental health services and attending therapy, and she demonstrated the capacity to complete the objectives of the case plan. M.E. contends her "minor setbacks were thus insufficient to show [she] could not complete the remaining components of her case plan." Specifically, although she had relapsed, she learned her lesson and later maintained sobriety; and, she sought to reenroll in a drug program shortly afterwards. M.E. adds that because the children's father was receiving additional reunification services through the 18-month review, the children would not experience any detriment if her services were likewise extended.
We review for substantial evidence a judicial finding concerning substantial probability the children will be returned to parental custody by the 18-month date. In making this determination, we review the record in the light most favorable to the juvenile court's determinations and draw all reasonable inferences from the evidence to support the findings and orders. We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the juvenile court. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 689.)
The juvenile court must find that the parent has had consistent and regular contact and visitation with the child; the parent has made significant progress in resolving problems that led to the child's removal from the home; and the parent has demonstrated the capacity and ability both to complete the objectives of his treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs. (§ 366.21, subd. (g)(1).) "[T]he Legislature has set a very high hurdle for continuing the case beyond 12 months." (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1060.) The Legislature's goals are clear: "We have long recognized that providing children expeditious resolutions is a core concern of the entire dependency scheme." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 847, fn. 4.) "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
The Agency concedes, and we agree, the first prong is satisfactorily met here, and the record contains substantial evidence to show that M.E. had regular contact and visitation with the children. However, M.E. did not satisfy the other two prongs of section 366.21, subdivision (g)(1). Specifically, M.E. did not show sufficient progress in resolving the problems that lead to the children's removal from her home. She failed drug tests or failed to show up for scheduled drug tests. She also did not attend drug counseling and was dismissed from a rehabilitation program. She inappropriately spoke about the caregiver to the children. She never had a significant period of unsupervised visits with the children. She sometimes did not take her prescription medications, to the detriment of her children.
For the same reasons, M.E. did not show a capacity to complete the plan and provide for the children's well-being. As set forth ante, she did not show a commitment to the case plan despite having the benefit of three years of services. Instead, she still inappropriately visited the caregiver's home and caused the eldest daughter to have a negative reaction to that experience. She took the children to an unauthorized spot on their scheduled meeting date. Y.E. was still upset with M.E. and did not visit with her. I.E. was still experiencing PTSD. For all these reasons, the juvenile court did not err by terminating services as to M.E. based on its conclusion that M.E. was not likely to provide for the children's well-being in the upcoming six months. M.E. had received the benefit of three years of services and still had not reached the point where she was able to reunite with the children.
Further, the fact that services were extended to the father until the 18-month date does not mean the mother should continue to receive services, as she suggests. Under California's dependency statutory scheme, services may be provided for one parent but not the other. (§§ 16507, subd. (c), 361.2, subd. (b)(3), 361.5, subds. (b), (e); see In re Brian M. (2000) 82 Cal.App.4th 1398, 1400, fn. 1.)
DISPOSITION
The orders are affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.