Opinion
A154197
06-29-2018
S.W., Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV100125)
Petitioner S.W. (Mother) seeks writ review (Cal. Rules of Court, rule 8.452) of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26. Mother challenges the juvenile court's orders removing her son (Minor) from her custody and bypassing reunification services under section 361.5, subdivision (b)(10). We deny the petition.
All undesignated section references are to the Welfare and Institutions Code. All undesignated rules references are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2017, the Humboldt County Department of Health and Human Services (Department) filed a section 300 petition alleging that Minor, then eight years old, was at risk of physical harm as a result of Mother's mental illness and substance abuse. The petition further alleged Minor was suffering serious emotional damage, evidenced by his aggressive behavior towards others and towards animals, and Mother was unable to provide adequate supervision due to her struggles with mental illness and substance abuse. Minor was detained and placed in foster care. The juvenile court sustained jurisdiction.
The petition also alleged Mother was failing to provide him with adequate food or medical treatment. The juvenile court did not sustain this allegation.
The Department's detention, jurisdiction, and disposition reports provide as follows. Mother had an extensive child welfare history. In 2005, an allegation of substantial risk regarding Minor's two half-siblings was substantiated and Mother received family preservation services for one year. In March 2008, Minor's half-sister was declared a dependent of the court because Mother was unable to provide regular care and supervision due to her mental illness and substance abuse. Reunification services were terminated in April 2009, shortly before Minor was born.
Minor's father was deceased.
In September 2010, when Minor was one year old, a family maintenance case opened for approximately one year, until August 2011. In June 2012, just 10 months later, another family maintenance case opened until September 2012, when Minor was removed from Mother's care because of her substance abuse and mental health issues. Minor remained out of Mother's care for more than two years. After Minor was returned to Mother's custody, they received family maintenance services for almost two more years. This prior dependency case terminated in September 2016.
In February 2017, less than six months after the prior case terminated, the Department received a referral alleging emotional abuse. Mother told a Department social worker that she has a diagnosis of complex post-traumatic stress disorder and Minor is re-triggering her. When Minor was "raging," he hit Mother and was very aggressive; Mother tried using a restraint, screaming, spanking, and threatening him but nothing was working. A youth services worker for the family told the Department that Minor tries to kill many small animals; when the worker tried to stop him from killing one, he told her that when he grew up he would pour acid on her to murder her. The worker also said she had to restrain Minor three times when he threatened to grab a knife and kill her. In March 2017, Mother admitting using methamphetamine in August 2016 (one month before the previous dependency case terminated). In April, the Department opened a voluntary case at Mother's request.
In September 2017, Mother called a Department social worker and reported feeling overwhelmed and concerned that she would not be able to control Minor. The following day, Mother told the social worker she had recently relapsed, believed she was "being hacked," and thought "signals" from the television were affecting her and Minor. Some days later, Mother accused the same social worker of working with a secret government program, and told the social worker she did not want to be part of a social study. Mother said she was going to a clinic for testing to see if she had been drugged. Mother told other social workers she believed her phone had been altered and various government agencies were following her. When Minor asked a Department social worker for food, Mother said she had money to buy Minor food but "you don't really want to get food for someone who is beating up on you, as [Minor] had been doing that morning."
During a home visit in early October, Minor's behavior became extreme and the Department called law enforcement, which took Minor to a psychiatric hospital. A psychiatrist told the Department Minor's issues were behavioral, not psychiatric, but that Minor needs to be removed from Mother because his behavior was the result of Mother "telling him things and him feeding off it." Ten days later, Minor called the police after he was hit in the face with a phone during a fight with Mother. A Department social worker met law enforcement at the home. Both Mother and Minor told the social worker they wanted Minor removed from Mother. The petition was filed one week later.
At the jurisdiction hearing in November 2017, Mother testified that she used methamphetamine for two days in October and for two days in late August. She previously used methamphetamine in April and had several relapses between March and April. After the juvenile court sustained jurisdiction, Mother told Department social workers metal rods had been placed inside her light switch plates and that a Department employee moved into the apartment next door and was spying on her. During a supervised phone call in December, Mother told Minor she was still having problems with hackers on her phone. Mother did not believe she needed medication, therapy, or substance abuse treatment.
The December 2017 disposition report stated Minor was still in his initial foster placement. The placement was out of county because there were no appropriate in-county placements. He had frequent violent outbursts, about one to four times per day. He was diagnosed with Attention Deficit/Hyperactivity Disorder and Unspecified Bipolar and Related Disorder, and was taking medication. Mother initially participated in supervised phone calls with Minor, but then stopped because she did not want to deal with the Department. The Department tried to arrange in person visits, offering to pay for transportation and lodging, but Mother stated the travel would be too difficult, both emotionally because of her PTSD, and physically because of her fibromyalgia. The disposition report concluded that, while Mother and Minor "have a strong bond," the bond has "been harmful to [Minor's] development." Mother had "not engaged with the Department" or "given any indication that she would benefit from further services." The Department recommended bypassing reunification services. In a March 2018 addendum, the Department reported Mother had been in a psychiatric facility in January, refused to leave when the facility tried to discharge her, and was subsequently placed on a section 5150 hold in a different hospital.
At the disposition hearing, Minor's counsel agreed with this recommendation.
A Department social worker testified at the April 2018 contested disposition hearing. Mother completed mental health and substance abuse assessments "right away" after Minor was removed. Mother's mental health issues were the Department's main concern; it was less concerned about her drug use. Mother's phone calls with Minor were mostly appropriate. Although Mother had no phone calls between late-December and mid-March, she had recently requested a phone call and one had been set up. Minor had made substantial progress with his behavior since his removal from Mother's care. He was no longer throwing things, hitting, or having temper tantrums. However, he had antagonized his original care provider's teenage daughters and, because the care provider found it too stressful, Minor had recently moved to a new placement. The social worker was concerned that, if Minor were returned to Mother's care, his behavioral improvements would reverse.
The juvenile court adjudged Minor a dependent, removed him from Mother's custody, bypassed reunification services pursuant to section 361.5, subdivision (b)(10), and set a section 366.26 hearing for August 13, 2018.
DISCUSSION
I. Removal from Mother's Custody
Mother first argues no substantial evidence supports the juvenile court's removal of Minor from her custody. We disagree.
Section 361, subdivision (c)(1), provides that a child shall not be removed from his or her parent's custody unless the court finds by clear and convincing evidence "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody. . . . The court shall consider, as a reasonable means to protect the minor, each of the following: [¶] (A) The option of removing an offending parent or guardian from the home. [¶] (B) Allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm."
Although the Department also relies on section 361, subdivision (c)(3), the juvenile court did not find this subdivision applies.
" 'A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]' [Citation.] . . . . We review an order removing a child from parental custody for substantial evidence in a light most favorable to the juvenile court findings." (In re Miguel C. (2011) 198 Cal.App.4th 965, 969.)
Substantial evidence supports the juvenile court's finding, including evidence of Mother's paranoia and psychiatric hospitalizations, Mother's belief that she did not need therapy or medication, Minor's extremely troubling behavior while in her custody, and the substantial improvements in Minor's behavior since his removal from Mother's care.
Mother argues that she sought the Department's help and submitted to a voluntary family maintenance case, that she promptly met with mental health and substance abuse service providers, and that she advocated for services she thought would help Minor. These efforts do not negate the evidence described above, nor do they indicate Minor could safely return to Mother's custody. Mother also argues the Department's frustration and difficulty communicating with Mother was not a basis for removal, pointing to testimony by the social worker that Mother was difficult to work with, and to the Department's submission, without explanation, of numerous text messages sent by Mother to the social worker. We presume the juvenile court's finding rested on the evidence we describe above, rather than on evidence that the Department found Mother difficult to work with. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689 [when reviewing for substantial evidence, we " 'merely determine if there are sufficient facts to support the findings of the trial court' "].) II. Section 361.5, Subdivision (b)(10) Bypass
Mother next argues no substantial evidence supports the juvenile court's bypass of reunification services. We again disagree.
Section 361.5, subdivision (b)(10) provides that reunification services need not be provided where the court finds, by clear and convincing evidence, "[t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 . . . and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian."
"The reasonable effort requirement focuses on the extent of a parent's efforts, not whether he or she has attained 'a certain level of progress.' [Citation.] 'To be reasonable, the parent's efforts must be more than "lackadaisical or half-hearted." ' [Citations.] However, '[t]he "reasonable effort to treat" standard "is not synonymous with 'cure.' " ' [Citation.] [¶] We do not read the 'reasonable effort' language in the bypass provisions to mean that any effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made. [¶] Simply stated, although success alone is not the sole measure of reasonableness, the measure of success achieved is properly considered a factor in the juvenile court's determination of whether an effort qualifies as reasonable." (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914-915.) "An order denying reunification services is reviewed for substantial evidence." (Id. at p. 914.)
Mother does not dispute that reunification services were terminated for Minor's half-sister, and that the basis for removal of the half-sister was Mother's mental health and substance abuse issues. Mother argues reunification services would not be fruitless because she sought help from the Department and advocated for services. Mother further argues the successful resolution of Minor's two prior dependency cases demonstrates that she has made reasonable efforts.
As the Department notes, Minor has been the subject of dependency cases for six of his nearly nine years. While the prior two cases terminated successfully, less than a year passed after each termination before a new case opened. In the nine years since reunification services for Minor's half-sister were terminated, Mother's efforts have not resulted in sustainable progress. The juvenile court may consider Mother's "lack of progress, both in the short and long term, . . . to the extent it bears on the reasonableness of the effort made." (R.T. v. Superior Court, supra, 202 Cal.App.4th at p. 914.) Substantial evidence supports the court's order bypassing services.
DISPOSITION
The petition is denied. This decision is final as to this court immediately. (Rule 8.490(b)(2)(A).)
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.