Opinion
A123596
3-10-2009
S.M., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent, ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest.
Not to be Published in Official Reports
On November 20, 2008, the Juvenile Division of the Alameda County Superior Court entered an order directing an out-of-home disposition for the minors in these proceedings, M.M. (born January 2003) and A.M. (born July 2005). The order also denied reunification services for S.M. (Mother) and set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minors. Mother challenges the order by petition for extraordinary writ, claiming the juvenile court erred in making the dispositional finding that it was necessary to remove the minors pursuant to section 361, subdivision (c)(1). As discussed below, we conclude there is substantial evidence to support the contested finding, and deny Mothers petition on the merits.
All statutory references are to the Welfare and Institutions Code.
Section 366.26, subdivision (l)(1)(A) bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
I. BACKGROUND
The Alameda County Social Services Agency (Agency) initiated this proceeding in September 2008, alleging that the minors were at substantial risk of serious physical harm or illness because Mother suffered from a mental disability that rendered her incapable of providing care for them. (§ 300, subd. (b).) Specifically, Mother allegedly suffered from schizophrenia and consistently displayed symptoms of severe mental illness that included delusions and hallucinations, such that she was not capable of independently providing for her own needs. The Agency also alleged that Mother had never independently cared for the minors. A separate allegation stated that the identities of the minors fathers and their ability to care for the minors were unknown. (§ 300, subd. (g).)
Another allegation stated Mother had felony convictions for robbery and possession of drugs and was currently on probation.
An Agency report, completed in late September 2008 and admitted at the jurisdictional hearing on October 22, noted that the maternal grandmother (Grandmother) had cared for the minors for most, or all, of their lives. The minors appeared to be happy and healthy in Grandmothers care. After taking the minors into protective custody on September 15, the Agency had returned them to Grandmothers care, placing them in her home in Oakland.
Mother, on the other hand, had never been the minors caregiver. Her schizophrenia impaired her to the extent that she could not care for herself, her prognosis for improvement was poor, and it was "generally understood that [she would] never be able to parent children." Mothers treatment included a number of psychotropic medications, she decompensated quickly if she missed even one dose, and even when medicated would experience delusions and auditory and visual hallucinations. She had been either incarcerated or in psychiatric hospitals "nearly continuously at least since early 2003," but currently resided in a board and care home, a facility for mental health patients. Mother had limited insight into her own incapacity, and had stated a number of times an intent to get her own apartment and "take her kids." She had expressed her unwillingness to relinquish legal custody of the children. The director of the board and care home—an unlocked facility—had stated that Mother was sometimes "a little scary" even when medicated, expressing concern that she would go to Grandmothers home and be disruptive.
Grandmother was currently taking the minors to supervised visits with Mother at the board and care home. As the assigned case worker later testified, these visits were "okay" because Grandmother "prepared [the children] psychologically." Grandmother had reported, however, that Mother made surprise visits to Grandmothers home and these disturbed the minors. The older minor had cried the evening and morning following one such visit.
Grandmother had been advised a year earlier to seek legal custody of the minors through the probate court. She had not done so, however. Although she was committed to caring for the minors and realized that she needed to obtain legal custody in order to provide responsible care, Grandmother was nonetheless "torn" about seeking a legal guardianship. She had stated she was "afraid" of Mother, and was also reluctant to take away Mothers maternal rights. The assigned case worker concluded the minors were in need of a "responsible custodian" and thus it was necessary for the Agency to intervene in order to assist Grandmother.
At the conclusion of the jurisdictional hearing the juvenile court sustained the allegations described above. A month later, on November 20, 2008, the court held the dispositional hearing and made a finding that it was necessary to remove the minors pursuant to section 361, subdivision (c)(1). The court further denied reunification services for Mother, after making a finding that she suffered from a mental disability that rendered her incapable of utilizing such services and that, even if they were provided, it was unlikely she would be able to care for the children within the applicable period for such services. (See § 361.5, subds. (b)(2), (c).) Consequently the court set the matter for a hearing under section 366.26. Mothers petition followed. (§ 366.26, subd. (l).)
II. DISCUSSION
Before ordering the removal of a minor from a parents physical custody pursuant to section 361, subdivision (c)(1), a juvenile court must find, by clear and convincing evidence, that the minor is at risk of substantial danger to his or her physical health, safety, protection, or physical or emotional well-being if left in the parents custody, and there are no reasonable alternatives to removal by which the minors physical health can be protected. (In re Isayah C. (2004) 118 Cal.App.4th 684, 695 (Isayah C.).) Mother contends there was insufficient evidence to support that finding in this case. She reasons there was no evidence she had ever harmed or threatened to harm the minors, and no evidence that the informal arrangement—under which Grandmother provided for their care—posed a substantial danger to the minors health, safety, protection, or well-being. Citing In re S. D. (2002) 99 Cal.App.4th 1068, Mother likens her case to that of a parent who has made appropriate arrangements for the care of her child during a period in which she is unable to provide care herself due to incarceration or institutionalization. In such a situation dependency jurisdiction does not properly lie pursuant to section 300, subdivision (g). As Mother argued below, her position is that intervention by the juvenile court was unwarranted and the proper course of action was for Grandmother to seek legal custody through guardianship proceedings in the probate court.
We review the record to determine whether there is substantial evidence that would permit a reasonable trier of fact to make the challenged finding under the clear and convincing evidence standard of proof. (Isayah C., supra, 118 Cal.App.4th at p. 694.) Under this standard of review we do not reweigh the evidence nor pass on the credibility of witnesses. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.) We view the record most favorably to the juvenile courts ruling and draw all reasonable inferences in its favor. (Ibid.)
At the dispositional hearing the juvenile court again admitted the report summarized above, which it had considered at the jurisdictional hearing. The court also admitted two more recent reports, which included two psychological evaluations completed in October 2008. The first, by Jose Lopez, Ph.D., reported that Mother appeared to have poor insight and judgment. She had stated, for example, that her numerous hospitalizations had been "for nothing." Dr. Lopez diagnosed Mother as suffering from "two serious psychiatric impairments"—schizophrenia, paranoid type, and cocaine dependence. These left Mother "unable to function in a minimally adequate manner, and . . . unable to responsibly care for the emotional, educational, medical needs of her children." He further concluded Mother did "not appear [to have] the cognitive and intellectual wherewithal to cope with the day-to-day demands of providing the nurturance, supervision and effective parenting to ensure a healthy and stable home environment for her two daughters"
The second evaluation, by Patricia Pérez-Arce, Ph.D., reported that many of Mothers hospitalizations were the result of her stopping her psychotropic medication, because she quickly decompensated whenever she stopped. During one early period of decompensation, Mother had exhibited "aggressive and assaultive" behavior toward Grandmother and had set fire to the house where they lived with Grandmothers mother. Dr. Pérez-Arce otherwise reached conclusions similar to those of Dr. Lopez.
At the hearing itself, the assigned case worker testified that Grandmother provided the minors with excellent care, but had not completely accepted the extent of Mothers disabilities, and might be "prone to not consistently set very clear boundaries with [Mother]." In her opinion the minors would benefit from the Agencys involvement as it could provide Grandmother with "the ability to legally protect them," and work with her to help her reach the fuller realization of her responsibility that she needed to provide for the minors long-term care.
In our view the foregoing evidence provides substantial support that would permit a reasonable trier of fact to determine the following facts. Mother suffered from a mental illness that effectively prevented her from ever having the capacity to care adequately for her children. Yet Mother lacked the insight to accept her incapacity, was unwilling to relinquish legal custody to Grandmother, and persisted in the belief that she would eventually be able to live independently and take over the minors physical custody and care. For her part, Grandmother had been unable or unwilling to pursue a probate petition for legal guardianship against Mothers wishes. As a result Grandmother lacked the authority to make medical and educational decisions to safeguard the health and well-being of the minors. She also lacked the authority either to regulate Mothers contact with the minors or to prevent Mother, who currently resides in an unlocked facility, from acting on her expressed intent to take physical custody of the minors at some point in the future. In other words, while Grandmother generally provided the minors with excellent care, the informal arrangement she and Mother had reached did not provide for a responsible legal custodian.
Mothers situation is to such an extent distinguishable from that of the mother in In re S. D., supra, 99 Cal.App.4th 1068. In that case the sole basis for jurisdiction was under subdivision (g) of section 300, and the question was whether the incarcerated mother could have arranged for the minors care at the time of the jurisdictional hearing. (In re S. D., at pp. 1077-1078.) Here the basis for jurisdiction, at least as to Mother, was the "substantial risk [of] serious physical harm or illness" under section 300, subdivision (b). In our view a determination of the foregoing facts would permit a trier of fact to draw a reasonable inference that Mothers arrangement for the minors care posed for them a substantial risk of physical harm or illness, for purposes of establishing jurisdiction under section 300, subdivision (b), because of the inability of both Mother and Grandmother to ensure long-term care by a responsible legal custodian. We note the further distinction that, whereas the mother in In re S. D. presumably retained the capacity to exercise her right of legal custody during her incarceration and was only temporarily unable to provide physical custody and care, it is evident that Mother in this case lacks the capacity ever to exercise responsibly either the legal or physical custody of the minors.
We conclude finally that the evidence we have summarized above additionally provides substantial support for a reasonable trier of fact, applying the clear and convincing evidence standard, to make the requisite "substantial danger" finding under section 361, subdivision (c)(1). In other words, the evidence is sufficient to support a finding that it was necessary to terminate formally Mothers physical custody of the minors, because allowing her to retain the right of such custody posed a substantial danger to the minors health, safety, protection, and well-being.
III. DISPOSITION
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately.
We concur:
Marchiano, P.J.
Graham, J.