Opinion
E082281
04-23-2024
In re B.K. et al., Persons Coming Under the Juvenile Court Law. v. A.K., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. DPRI2300003, Mona M. Nemat, Judge. Affirmed.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel for Plaintiff and Respondent.
OPINION
MILLER Acting P. J.
The juvenile court found that the previously ordered plan of family maintenance was ineffective in protecting O.K. and B.K. (collectively, the children). (Welf. & Inst. Code, § 387, subd. (b).) The juvenile court ordered the children removed from their mother, A.K. (Mother). (§ 361, subd. (c)(1).) Mother raises four issues on appeal. First, Mother contends substantial evidence does not support the finding that family maintenance was ineffective in protecting the children. (§ 387, subd. (b).) Second, Mother asserts substantial evidence does not support the finding that the children would be in danger if returned to Mother's custody. (§ 361, subd. (c)(1).) Third, Mother contends the juvenile court erred by summarily denying her request to change a court order (§ 388) pertaining to the children's placement. Fourth, Mother asserts the juvenile court should have held a hearing concerning placing the children with their maternal grandmother. (§ 361.3.) We affirm.
All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
O.K. is male and was four years old in December 2022. B.K. is female and was two years old in December 2022. The children, Mother, Mother's mother (Grandmother), Mother's father (Grandfather), and Mother's brother (Uncle) resided together. Uncle is on the autism spectrum. In September 2022, Uncle stabbed Grandfather.
Mother's sister (Aunt) had "concerns for the safety of the children, as [Mother] locks the children in a bedroom and does not allow them to socialize with others; therefore, [O.K.] is nonverbal. She added concerns for [Mother's] mental health as she has been diagnosed with bipolar disorder and schizophrenia and refuses treatment." In the past, Mother abused cocaine. Mother has a history of "5150 psychiatric holds due to her substance abuse." Grandmother and Grandfather supported Mother's refusal of treatment.
The children's father, J.K. (Father), was prohibited from living with Mother and the children due to a restraining order. However, Father contended Mother was the aggressor in the altercation that led to the restraining order, so he was in the process of seeking full custody of the children in the family court.
B. INITIAL HEARING
In December 2022, Uncle strangled Mother. The children were in the room while Uncle strangled Mother; Grandmother moved the children into another room during the strangulation. The police and Riverside County Department of Public Social Services (the Department) were contacted. In January 2022, the juvenile court permitted Mother to retain physical custody of the children.
C. JURISDICTION AND DISPOSITION
The Department asked Mother about Aunt's allegations regarding Mother's mental health. Mother said," 'My brain doesn't function the same way after the crocodile drug I was given once.' " Father told the Department that Mother informed him" 'about her diagnosis of bipolar with schizophrenia and that she did not need any medication. Later, [Grandmother] told [Father] about [Mother's] diagnosis, but reported that the family did not believe in medication being the answer. [Grandmother and Grandfather] have always been against the Healthcare system and do not trust it.'" Father wanted O.K. to participate in speech therapy. O.K. was on Father's insurance, and Father believed Mother knew "how to access [the insurance]."
We infer that "the crocodile drug" was Krokodil.
In February 2023, Mother and the children were residing in a long-stay hotel. When the Department social worker visited the children, O.K. was nonverbal and had "five tantrums in the period of 65 minutes." On February 15, 2023, the Department social worker concluded, "[Mother] has been diagnosed with Schizophrenia and Bipolar and although [she] refuses to treat the illness[es], [she] still feels she is a good fit for the children. The opposite has been exemplified, in that she has shown a lack of effort to work on getting [O.K.] the speech therapy he needs to mitigate further concerns for his developmental progress."
On February 28, 2023, Mother told the Department social worker "that during a phone consult with [a pediatrician], he recommended that [B.K.] treat a breakout of eczema with cortisone cream. [Mother] informed [the social worker] that she does not wish to place that on [B.K.'s] skin and chose to use over the counter grapeseed oil." In March 2023, the Department provided referrals for the children to have mental health assessments, but Mother did not respond to the clinic's staff's calls to schedule appointments.
On March 7, 2023, O.K. was scheduled "to see [the pediatrician] for an update on his speech therapy"; however, the appointment, which had already been rescheduled multiple times by Mother, was rescheduled again. The appointment was to obtain "a new speech therapy referral and resource support for his autistic features. [Mother] refuse[d] to take [O.K.] to the current speech therapy referral stating it is too far away." The social worker noted, "[Mother] has no issue bringing [Grandmother] over from Moreno Valley to Temecula multiple times per week, yet cannot seek assistance for an initial visit for speech therapy." On March 14, Mother took O.K. to the pediatrician and obtained a referral to a speech therapist.
The Department contacted the school district's preschool coordinator and discussed the need for O.K. to have an individualized education plan (IEP). After obtaining the necessary IEP paperwork, the Department social worker called Mother and requested they complete the paperwork together. Mother acted as though she did not hear the social worker's request. The social worker repeated herself, and Mother ultimately hung up on the social worker. In March 2023, Mother and the children moved into an apartment.
In the Department's March 2023 report, the social worker opined, "[Mother's] efforts to care properly for the children continue to be of concern due to her keeping the children in their dwelling with no interaction with other children and her lack of attention to the referral for speech therapy."
In April 2023, Mother declined to complete the preschool IEP paperwork. Mother asserted she planned to homeschool the children. Grandmother asserted that she and Mother were teaching O.K. "through home therapy methods, to improve his speech deficits. She said, 'We are teaching him words and full sentences.'" There was no indication Mother had taken O.K. to the speech therapist. Father completed the school district's IEP paperwork.
The juvenile court found true the allegations that the children were at risk of serious physical harm or illness (§ 300, subd. (b)(1)) because (1) Mother exposed the children to Uncle's act of domestic violence; (2) Mother has unresolved mental health issues; (3) Mother failed to benefit from services previously offered to her; (4) Mother lacks parenting skills as demonstrated by failing to take O.K. to speech therapy; and (5) there is a restraining order protecting the children from Father. In April 2023, the juvenile court ordered (1) the children to continue in Mother's custody on a plan of family maintenance, and (2) Mother and the children to participate in psychological evaluations for the purpose of determining the appropriate services to provide Mother and the children.
D. IN-HOME SUPERVISION
Mother did not participate in a psychological evaluation; Mother did not take the children to participate in psychological evaluations; and Mother did not take O.K. to speech therapy. In June 2023, after receiving a report in which the Department recommended detaining the children from Mother, the juvenile court ordered the children remain with Mother on a plan of family maintenance, but that Mother be supervised by a friend or relative while with the children. The supervising relative could not be Grandmother, Grandfather, or Uncle. Further, the court ordered Mother to complete two psychological evaluations.
Mother failed to take O.K. to his speech assessment at the school district by June 12, 2023, so O.K. had to wait until the fall. When the Department social worker visited the children in June 2023, O.K. was "very difficult to understand." The social worker could understand a few words he said, but, for the most part, was unable to understand him. During a phone call in June 2023, Mother was distracted because B.K. was suffering from eczema and crying. B.K. had eczema on her feet and the back of her knees.
Mother completed one psychological evaluation. The psychologist diagnosed Mother with bipolar I disorder depressive; borderline personality disorder with turbulent features; narcissistic personality disorder with turbulent features; and post-traumatic stress disorder. The psychologist "expressed concern that [M]other has failed to take care of her special needs children up until this point. [The psychologist] expressed [the] need for [M]other to ensure all appointments for the children are completed in a timely manner. She recommended services to include domestic violence classes, parenting classes, anger management, and substance abuse treatment, as well as intermittent drug testing."
On June 29, 2023, based on the psychological evaluation, the Department provided Mother with referrals for individual counseling, parenting classes, a psychotropic medication evaluation, domestic violence classes, and a second psychological evaluation.
E. DETENTION
The Department approved seven different people to take turns supervising Mother with the children. Mother admitted that, on July 20, 2023, she was alone with the children overnight and for a large part of the day, which was spent at the mall and taking O.K. to an autism assessment. B.K. completed her assessment at the Inland Regional Center (IRC). The IRC found that B.K. has "delays in receptive language skills." B.K. still needed to complete a mental health assessment. Mother had not begun most of her own services. On July 26, 2023, the juvenile court ordered the children be detained from Mother; they were placed in foster care.
F. SUPPLEMENTAL PETITION
On August 4, 2023, Mother visited the children. Mother noticed that B.K. was having an eczema flare-up. Mother said B.K. had a prescription cream for her eczema, and the Department social worker asked Mother to bring the medication to the next visit. During the visit on August 9, 2023, the social worker asked if Mother brought B.K.'s medication. Mother said she did not bring B.K.'s medication because Mother wanted to first speak with B.K.'s pediatrician. Mother proceeded to bring "out a big bottle of olive oil. [Mother] was about to put the olive oil on [B.K.'s] legs." A social worker asked Mother not to apply the olive oil until a doctor advised olive oil was beneficial for eczema. Mother replied," 'I am her mother and I will put olive oil on her if I want to.' [Mother] began to slather olive oil all over [B.K.'s] legs."
Per the children's pediatrician, "olive oil is not a recommended treatment for eczema." The Department social worker asked Mother, "on several occasions," to provide the prescription hydrocortisone cream to treat B.K.'s eczema, but Mother did not provide the medication. The foster parent took B.K. to the pediatrician. B.K. was diagnosed with severe eczema. The foster parent obtained the prescription cream and applied it to B.K. As a result, B.K. "had great improvement with regard to the eczema." Father completed the necessary paperwork for B.K. to start services with the IRC.
The Hope Comprehensive Center for Development (HCCD) gave O.K. a primary diagnosis of autism spectrum disorder, and secondary diagnoses of global developmental delay, mixed receptive-expressive language disorder, and social pragmatic communication disorder. HCCD recommended O.K. receive occupational therapy once or twice a week, academic speech and language therapy, outpatient speech services, and educational services.
On August 30, 2023, the Department informed Mother that O.K. had been enrolled in kindergarten. Mother responded that she did not consent to O.K. being enrolled in school. The Department told Mother that it did not need Mother's consent to enroll O.K. in kindergarten. On September 15, 2023, the Department again provided Mother with referrals for services. Mother tested negative for drugs but otherwise did not participate in services.
On September 28, 2023, the juvenile court sustained the supplemental petition (§ 387), finding that family maintenance was not effective in protecting the children because Mother failed to comply with the court's orders for services and supervision. The juvenile court ordered the children removed from Mother's physical custody. (§ 361, subd. (c)(1).)
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
1. PREVIOUS DISPOSITION WAS INEFFECTIVE
Mother contends there is insufficient evidence supporting the juvenile court sustaining the supplemental petition.
A supplemental petition is filed when "the previous disposition has not been effective in the rehabilitation or protection of the child." (§ 387, subd. (b); see also Cal. Rules of Court, rule 5.560(c).) Under the substantial evidence standard, we do not resolve conflicts in the evidence or reweigh the evidence. Rather, we view the evidence in the light most favorable to the juvenile court's findings. (In re D.D. (2019) 32 Cal.App.5th 985, 990.)
In the supplemental petition, the Department alleged that Mother violated the court's order by being alone with the children and "[M]other failed to respond and/or follow through with necessary service providers." B.K. suffered from severe eczema. Mother put olive oil on B.K.'s eczema, which is not a treatment for eczema. B.K. suffered from language delays. Mother did not take B.K. to speech therapy for her language delays. O.K. is autistic and barely verbal. O.K. needs speech therapy and other services. Mother did not take O.K. to speech therapy or other service providers. Mother tried to prevent O.K. from attending school, where he could obtain services.
The foregoing evidence reflects that Mother was not providing the children with the necessary medical care and supportive services. (§ 300, subd. (b)(1)(C) ["willful or negligent failure of the parent . . . to provide the child with adequate . . . medical treatment"].) The lack of medical treatment supports the finding that family maintenance was ineffective in protecting the children. (§ 387, subd. (b).)
Mother contends there is no evidence that her mental illnesses "caused her to fail to protect her children." Mother is mistaken. The psychologist's report reads, "The question and answer of [Mother's] ability to retain custody is really manifested in the way she has failed to take care of her special needs children up until this point. She has a prior diagnosis of bipolarity and a clearcut generalized anxiety disorder as well as post-traumatic stress from her childhood marred by violence and an adulthood with similar domestic violence in her own relationships. [Mother] needs to regain control of her life. [¶] [Mother] needs to take care of her special needs children by following up on . . . speech assessment and therapy for [O.K.]." The psychologist found that Mother lacked control over her life due to Mother's mental illnesses, which resulted in Mother failing to provide the necessary specialized care for the children. Thus, there is evidence that Mother's untreated mental illnesses caused her to not provide the necessary medical care for the children.
Mother contends, "By the time the section 387 supplemental petition was filed, Mother had obtained developmental assessments for [the children]; thus, the allegation that Mother failed to protect the children because she failed to follow through with service providers was not true." Under the substantial evidence standard, we do not reweigh the evidence; rather we focus on the evidence that supports the juvenile court's findings. (In re D.D., supra, 32 Cal.App.5th at p. 990.)
The evidence supporting the findings is as follows: Mother did not attend a psychotropic medication evaluation for herself or individual therapy. Thus, Mother's mental illnesses were untreated. Mother did not use an approved treatment for B.K.'s severe eczema. Mother did not take B.K. for a mental health assessment. Mother did not take O.K. to speech therapy, despite having referrals for it and insurance coverage. Mother tried to block O.K. from attending school, where he could obtain services. Mother did not take O.K. for a mental health assessment. Thus, Mother did not provide appropriate medical care for O.K. who struggled with verbal skills and tantrums. In sum, there is substantial evidence that Mother had untreated mental illnesses and did not provide appropriate medical care for herself and the children. That finding supports the conclusion that Mother did not follow through with service providers for herself and the children.
Mother claimed she attended counseling sessions, but the Department social worker had no proof of Mother's attendance at counseling.
Mother asserts that, when the social worker testified, the social worker could not identify a way in which Mother physically harmed the children. Mother also asserts that when the children were observed by the social worker during home visits, the children appeared unharmed. Again, we cannot reweigh the evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) Therefore, Mother's argument pointing to contradictory evidence is not productive. We have set forth, ante, the substantial evidence that supports the juvenile court's findings.
Mother asserts she has a liberty interest in directing the children's education." '[A] parent's own constitutionally protected "liberty" includes the right to "bring up children" [citation], and to "direct the upbringing and education of children." [Citation.] As against the state, this parental duty and right is subject to limitation only "if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." '" (Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1103.)
O.K. lacked the ability to speak. Mother may have been trying to help O.K. learn to express himself, but he was suffering multiple tantrums per hour, so Mother's lessons were insufficient. Professional assistance in teaching O.K. how to express himself was needed because having five tantrums in 65 minutes is physically and emotionally exhausting. In regard to B.K., the child constantly had eczema. Mother was using olive oil on the child, which is not an eczema treatment. B.K. also appeared to suffer from anxiety, but Mother failed to take B.K. for a mental health assessment. B.K. had language deficits and would hit and kick when frustrated. Mother failed to take B.K. to speech therapy. Mother's choices were jeopardizing the children's health. Therefore, the Department and the court had authority to intervene on behalf of the children.
Mother asserts the children transitioned into foster care with ease, which is evidence that Mother took good care of the children. This argument is not particularly helpful to Mother, as one could infer the children were not upset to live apart from Mother. Notably, the children were not upset when they were taken into protective custody and did not ask for Mother when in their foster home. Additionally, the children were placed in a foster home "that has experience working with children with special needs to include autism." Presumably, the foster parents helped to ease the children's transition.
2. REMOVAL
Mother contends substantial evidence does not support the finding that there were no reasonable means to protect the children other than removing them from Mother's physical custody.
Children are not to be taken from their parent's physical custody unless, by clear and convincing evidence, the juvenile court finds "[t]here is or would be a substantial danger to the [children's] physical health, safety, protection, or physical or emotional well-being . . . if . . . returned home, and there are no reasonable means by which the [children's] physical health can be protected without removing the [children] from the . . . parent's . . . physical custody." (§ 361, subd. (c)(1).)
O.K. was barely verbal. Mother never took O.K. to speech therapy despite having Father's health insurance and the Department's referrals. Mother tried to prevent O.K. from attending school where he could receive speech services. O.K.'s inability to express himself led to him having five tantrums within 65 minutes. Mother's failure to take O.K. to speech therapy placed O.K. in physical danger because, over time, his frustration would grow and his tantrums would worsen leading to physical harm. Mother's failure placed O.K. in emotional danger because he is so frustrated by the inability to communicate that he is having multiple tantrums per hour. Removing O.K. from Mother was the only way for O.K. to receive the speech services that he needed to start expressing himself in a productive manner. (§ 300, subd. (b)(1)(C) [willful or negligent failure to provide medical treatment].)
B.K. needed speech services, in particular receptive language skills. B.K. had difficulty "pointing to familiar objects when [they were] described by their use, and following simple commands without gestural support." When B.K. was frustrated, she would "hit and kick, and she can be very sensitive and cry easily." One can reasonably infer that B.K.'s lack of understanding of speech led to frustration that manifested in anger and frustration. Mother would not take B.K. to speech therapy nor to a mental health assessment, which were identified needs. Removing B.K. from Mother was the only way for B.K. to receive the speech services and mental health care that she needed. (§ 300, subd. (b)(1)(C) [willful or negligent failure to provide medical treatment].) In sum, substantial evidence supports the decision to remove the children.
B. REQUEST TO CHANGE A COURT ORDER 1. PROCEDURAL HISTORY
When Mother was a child, Grandmother abused her. When the children were removed from Mother, they could not be placed with Grandmother because Grandmother resided with Uncle, whose domestic violence started this dependency case. Nevertheless, on August 1, 2023, the Department social worker took Grandmother's information for the relative placement assessment, in the event Grandmother and Uncle no longer resided together. In August 2023, the social worker submitted Grandmother's information so she could go through the placement approval process.
On September 1, 2023, in a request to change a court order, Mother asserted "[Grandmother] would be able to have the children at [M]other's apartment." Mother "request[ed] the Court set a 361.3 hearing to address relative placement with [Grandmother]." The juvenile court summarily denied the request, finding it was not in the children's best interests.
2. ANALYSIS a. Section 388
Mother contends the juvenile court erred by denying her request to change a court order. "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made." (§ 388, subd. (a)(1).) "The court must liberally construe the petition in favor of its sufficiency. [Citations.] 'The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing.'" (In re A.S. (2009) 180 Cal.App.4th 351, 357-358.) We apply the abuse of discretion standard of review, which means we will only reverse if the juvenile court's decision was arbitrary or absurd. (Id. at p. 358.)
Mother's request did not describe changed circumstances. Rather, Mother offered to create a change in circumstance, i.e., Grandmother could move into Mother's apartment with the children. Further, the best interests prong lacked sufficient allegations as to how the request would serve the children's best interests. Mother asserted the children had a relationship with Grandmother, so living with her would be better than living "with a stranger." Mother did not explain in what way Grandmother would tend to the children's medical and mental health needs. Moreover, it was unclear where Mother would live-in the apartment with the children or at another location away from the children. Also, Grandmother was allegedly Uncle's conservator, so it was unclear if Uncle would also be residing in Mother's apartment with Grandmother.
At the hearing on the supplemental petition, Grandmother testified that she had been helping Mother to care for the children during the period of family maintenance when the children did not participate in their services.
At the hearing on the supplemental petition, Grandmother testified that she intended for Mother to live in the apartment as well.
Mother asserts, "These are all issues that would be fleshed out in a hearing." In order to have a hearing, Mother first had to make a prima facie case in her written request. (In re A.S., supra, 180 Cal.App.4th at pp. 357-358.) Mother failed to allege changed circumstances and failed to provide sufficient information concerning how the change might serve the children's best interests. Accordingly, the juvenile court did not err by summarily denying Mother's request.
b. Section 361.3
Mother asserts that her section 388 request should have been interpreted as a motion for a relative placement preference hearing (§ 361.3). Section 361.3 mandates that, when a child is removed from his/her parent, then "preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative." (§ 361.3, subd. (a).) The statute lists factors for the child welfare agency and juvenile court to consider when determining "whether placement with a relative is appropriate." (§ 361.3, subd. (a).)
The Department contends Mother lacks standing to raise this issue because it pertains to a motion that Grandmother would have needed to make. Mother asserts that she does have standing. We will assume, without deciding, that Mother has standing.
In August 2023 the Department social worker gave Grandmother's information to the unit within the Department that assesses relatives' homes for placement. Given that Grandmother was already in the process of being assessed for placement, we fail to see why Grandmother would have needed a relative placement preference hearing at that point (§ 361.3). Therefore, the juvenile court did not err.
DISPOSITION
The September 28, 2023, disposition order (§ 361, subd. (c)(1)) and the September 6, 2023, summary denials of Mother's requests to change court orders (§ 388) are affirmed.
We concur: FIELDS J. MENETREZ J.