In re O.A. CA4/2 ( 2015 )

Filed 1/15/15 In re O.A. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re O.A., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E059174 / E060958
Plaintiff and Respondent, (Super.Ct.Nos. J245995 &
CK 59898)
v.
OPINION
A.A.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Jean-Rene Basle, County Counsel, Jeffrey L. Bryson and Jamila Bayati, Deputy
County Counsel, for Plaintiff and Respondent.
1
I
INTRODUCTION
In this consolidated appeal, appellant April A. (mother) appeals three orders: (1)
jurisdiction and disposition orders on June 11, 2013, made regarding mother’s daughter,
O.A., born in 2000; (2) an order on October 15, 2013, partially denying mother’s
modification petition; and (3) a permanent placement review (PPR) order on February 28,
2014. Mother and O.A.’s father1 have been incarcerated since O.A. was four years old.
O.A. has never had any visitation with mother.
In mother’s first appeal, mother contends there was insufficient evidence to
support the juvenile court’s order authorizing administration of psychotropic medication
to O.A. Mother also argues the juvenile court erred in denying her in-prison visitation.
In mother’s second appeal, mother contends the juvenile court erred in partially denying
her modification petition and denying her request that her friend, F.S., be assessed for
placement. In mother’s third appeal, mother argues the juvenile court erred in denying
conjoint therapy; denying visitation and contact with O.A. unless O.A. requests it;
authorizing psychotropic drugs for O.A.; and finding there was not a qualified guardian
available for O.A. We conclude the juvenile court did not commit reversible error and
affirm the judgment.
1 Father is not a party to this appeal.
2
II
FACTS AND PROCEDURAL BACKGROUND
The juvenile proceedings in this matter began in the Los Angeles County Superior
Court, resulting in numerous appeals, including three heard in the Second District Court
of Appeal, Division Three (case Nos. B189905, B202585, and B215026), in 2006, 2008,
and 2009.2 The first and second Court of Appeal decisions contain detailed summaries of
the facts and proceedings through September 18, 2007. Those facts are only briefly
summarized in the following summary of facts and proceedings in this case.
First Appeal (June 11, 2013 Order)
Parents’ Incarceration and Placement of O.A. and E.A. with Relatives
Prior to mother’s incarceration in January 2005, mother worked as a licensed
vocational nurse for 10 years. Mother gave birth to O.A., mother’s first child, in 2000.
In November 2004, father went on a shooting spree, with mother and O.A. in the car. No
one was physically injured. Father claimed mother did not know he was carrying a
pistol. Mother and father were convicted of attempted murder. Father was incarcerated
2 In mother’s first and second appeals (case Nos. B189905 and B202585), mother
challenged the disposition order and an order terminating parental rights to O.A.’s sister,
E.A., on the grounds of noncompliance with Indian Child Welfare Act of 1978 (ICWA)
(25 U.S.C. § 1901 et seq.) and issues of placement of O.A. and E.A. The Court of
Appeal affirmed the orders, with directions the juvenile court order the Los Angeles
Department of Children and Family Services (LACFS) to comply with ICWA notice
provisions. (In re E.A. and O.A., 2006 Cal.App.Unpub. LEXIS 10240, pp. 2, 23; In re
O.A., 2009 Cal.App.Unpub. LEXIS 7614, pp. 1, 6.) Mother’s third appeal (case No.
B215026) concerned only E.A. and resulted in the Court of Appeal affirming the lower
court order terminating parental rights as to E.A. (In re E.A., 2009 Cal.App.Unpub.
LEXIS 7614, pp. 2-3, 27.)
3
in November 2004, on a 30-year sentence, with a release date of 2035. Mother was
incarcerated in January 2005, on a 13-year sentence, with a release date of 2016.
Mother’s brother and his wife (Aunt and Uncle) initially cared for O.A. during mother’s
incarceration. While incarcerated, mother gave birth to a second daughter, E.A., born in
June 2005. Mother arranged for E.A.’s maternal great-uncle (Great Uncle) to care for
E.A.3
Juvenile Dependency Petition
On July 7, 2005, Los Angeles Department of Children and Family Services
(LACFS) received a referral alleging that E.A., who was one month old, was being
sexually abused (fondled) by Great Uncle. Although the LACFS and law enforcement
concluded there was insufficient evidence Great Uncle sexually abused E.A., there was
evidence Great Uncle had drugs in his home, abused drugs and alcohol, and was careless
in caring for E.A. LACFS therefore concluded mother had placed E.A. in an unsafe
environment with Great Uncle, removed E.A. from Great Uncle’s care, and placed E.A.
in a foster home. O.A. and E.A. were not placed together. O.A.’s therapist
recommended against placing the siblings together because of O.A.’s aggressiveness.
During LACFS’s investigation of the matter involving E.A., LACFS discovered that
mother was incarcerated and O.A. was living with Aunt and Uncle. LACFS found that
Aunt and Uncle were appropriately caring for O.A.
3 The LACFS juvenile dependency petition and status review reports initially
state that E.A.’s caretaker was O.A. and E.A.’s maternal great-uncle. Later reports state
that he is a maternal cousin.
4
LACFS filed a juvenile dependency petition under Welfare and Institutions Code
sections (a), (b), (d), (i), and (j),4 as to both E.A. and O.A. (the girls) on July 13, 2005.
The petition alleged the girls’ parents had a history of violent behavior and were
incarcerated for participating in a freeway shooting in November 2004; mother placed
E.A. with Great Uncle, an inappropriate caretaker who, on July 7, 2005, sexually abused
E.A. and had illicit drugs in his home, and whom mother knew abused drugs and alcohol.
The juvenile court ordered E.A. detained in foster care and O.A. detained in her
current placement with Aunt and Uncle. E.A. was not placed with Aunt and Uncle
because they felt they would not be able to care for her adequately, since she was an
infant and they lacked funding. Uncle and Aunt lived in a small home and were already
caring for their own child and O.A.
In 2005, O.A. screamed when she saw mother in court. In July 2006, O.A.’s
therapist diagnosed O.A. as suffering from adjustment disorder with anxiety,
posttraumatic stress disorder, sexual and physical abuse, and prolonged child neglect and
endangerment by her parents. In response to mother’s request to see O.A. at the
courthouse on July 25, 2006, O.A.’s therapist recommended that O.A. not see mother due
to O.A.’s diagnosis and O.A. recently experiencing an increase in “scary” feelings from
changes in her life, including entering first grade and being away from home longer.
4 Unless otherwise noted, all statutory references are to the Welfare and
Institutions Code.
5
O.A.’s therapist concluded that O.A. seeing mother could trigger more intense feelings of
distress.
Jurisdiction and Disposition Hearing
In August 2005, Uncle told the LACFS social worker that, because O.A. had been
through a lot of trauma while living with mother, O.A. was afraid to be alone, scared of
the dark, had nightmares, and sexually acted out with Uncle’s 18-month-old son. O.A.
told Aunt and Uncle that mother had left her alone for long periods of time and moved
O.A. from house to house, requiring O.A. to change schools frequently. Uncle noted
O.A. had been in the back seat of the car during the shooting incidents. Aunt was seeking
counseling for O.A. Although O.A. was making progress, Uncle was very concerned for
O.A.’s emotional stability and wanted the court to take jurisdiction over O.A., because he
did not want mother taking O.A. away and again exposing O.A. to such devastating
conditions, after all of Aunt and Uncle’s efforts to stabilize O.A. In June 2005, O.A.
began seeing a therapist. In December 2005, the juvenile court ordered respite care for
O.A. The court ordered O.A. removed from Aunt and Uncle’s home because they felt
they no longer could care for her due to O.A.’s behavioral problems and financial costs.
In February 2006, after six weeks of respite care, O.A. returned to Aunt and Uncle’s
home.
At the jurisdiction hearing on February 7, 2006, the juvenile court sustained the
allegations in the juvenile dependency petition under section 300, subdivisions (b) and
(j), declared O.A. and E.A. dependents of the juvenile court, ordered O.A. and E.A.
removed from parents’ custody, denied reunification services, and set the matter for a
6
section 366.26 hearing. On July 24, 2007, the juvenile court found O.A. not adoptable
because she was living with relatives who did not wish to adopt her but were willing to
be her legal guardians. The court accordingly appointed Aunt and Uncle as O.A.’s
guardians.
Interim Review Hearings
At an interim status review hearing on February 25, 2008, O.A.’s attorney
informed the court that Aunt and Uncle were struggling with O.A.’s care in part because
mother was continually harassing them and questioning their care of O.A. The court
ordered that all letters between mother and O.A. were to go to the social worker and then
forwarded if appropriate. The court further authorized mother to have one weekly,
monitored phone call to O.A. LACFS reported in its March and September 2009, and
March 2010 status review reports that O.A. was doing well in Aunt and Uncle’s home
and at school. O.A. was emotionally stable, with no behavioral problems. O.A. spoke to
mother by telephone on Sundays. O.A. was in therapy.
At the September 2010 review hearing, O.A.’s attorney told the juvenile court that
Aunt and Uncle were struggling financially because Aunt had been laid off and had
medical issues that prevented her from caring for O.A. Counsel also noted that O.A.
suffered from a lot of anxiety, including being afraid at night and when left alone, day or
night. O.A. had been seeing a therapist pro bono for a couple of years. Mother requested
visitation with O.A. at the prison and noted that mother was supposed to be able to call
O.A. but that was not happening. The court set a hearing regarding visitation, phone
calls, and letters.
7
LACFS reported in its October 2010 interim review report that Aunt did not think
it would be appropriate for O.A. to visit mother in prison. The social worker stated she
did not approve of O.A. visiting mother in prison but did not object to mother talking to
O.A. on the phone. However, O.A. said she did not like talking to mother on the phone.
The juvenile court ordered continuation of the existing orders regarding visitation,
monitored telephone calls once a week, and correspondence between mother and O.A. to
be provided through LACFS.
LACFS reported in March 2011, that O.A. was emotionally stable and continued
to do well in school and in her home placement. She qualified for the Gifted and
Talented Education Program (GATE) and had received school awards. Mother continued
to request O.A. visit her in prison, even after the social worker advised her several times
that it would not be in O.A.’s best interest. Aunt and Uncle agreed there should be no
visitation at the prison. O.A.’s therapist had also stated such visitation was not advisable.
At the review hearing on March 9, 2011, the juvenile court denied mother’s visitation
request, stating that the court was concerned about the welfare of O.A. and, until there
was a change of circumstances, visitation would be denied.
In July 2011, the juvenile court ordered E.A. adopted and terminated jurisdiction
over E.A.
LACFS reported in its December 2011 interim review report that O.A. was
experiencing serious mental health issues. O.A. was diagnosed with psychosis and
prescribed Risperdal on March 1, 2012.
8
LACFS submitted a request to the juvenile court on March 7, 2012, for
administration of Risperdal. At the hearing on March 7, 2012, mother again requested
visitation, which was denied. The court approved the case plan, which included
providing O.A. with counseling, a psychotropic medication evaluation, and monitoring.
O.A. continued to do well in school despite suffering frequent anxiety attacks throughout
the day, paranoia, and hallucinations. Since O.A. began taking Risperdal, O.A. was able
to sleep in her bed but continued to fear someone was trying to kill her during the night.
LACFS reported in September 2012, that O.A. continued to have anxiety attacks
and hallucinations but they were less frequent since she had started taking medication.
At the review hearing on September 5, 2012, mother’s attorney stated that mother’s
weekly calls had stopped in February 2012 because O.A.’s legal guardians could no
longer afford to receive mother’s collect calls. Mother therefore requested funding for
the calls. Mother also requested in-prison visits. Mother’s attorney did not object to the
current case plan, which included providing O.A. with psychotropic medication and
counseling. O.A.’s attorney informed the court that O.A. was finally able to sleep in her
bed, not under it, but O.A. still had nightmares, hallucinations, and frequent anxiety
attacks during the day.
The juvenile court ordered contact between mother and O.A. limited to letters
through the social worker and all current orders remain in effect. The court also ordered
the case transferred from the Los Angeles County Superior Court to San Bernardino
County Superior Court, the county where O.A. and mother were located.
9
Juvenile Dependency Case Proceedings in San Bernardino County
San Bernardino County, Department of Children and Family Services (CFS)
reported in its November 2012 hearing report that a social worker visited O.A. and
provided a referral of O.A. to the San Bernardino County Juvenile Court Behavioral
Health Services Department (DBH) for psychiatric medication. During the social
worker’s initial visit, O.A. said she disliked sharing a room with her nine-year-old male
cousin because he was very messy and wanted to be moved. O.A. also said her aunt was
sometimes mean, but O.A. did not elaborate. O.A. appeared to be well cared for. Aunt
reportedly was limiting mother’s phone calls to O.A. to holidays. Uncle had not been
living in the family home since July 2011 because he was employed out of state.
O.A.’s therapist, Joyce Noblitt Herold, reported on September 27, 2012, that O.A.
did not wish to have any type of visitation with either of her parents. Herold concluded
O.A. “would be put at risk for more psychotic episodes if she were to be made to have
visits with her mother in prison at this time. . . . I believe that [O.A.] is mentally and
emotionally raw and fragile at this time, and therefore should not be put in the
uncompromising position of having to choose her mother’s (or father’s) needs over her
own . . . i.e. that of visitation when [O.A.] is clearly not ready for such an ordeal.”
CFS reported in February 2013, that O.A. continued to do well in school. Aunt
did not want to adopt O.A. since O.A. was college bound and Aunt wanted O.A. to
qualify for benefits and services, and remain under the supervision of the court. Uncle
continued to reside out of state for employment reasons. At the postpermanency review
hearing on March 6, 2013, the court once again denied mother’s request for in-prison
10
visitation and ordered CFS to ask O.A. if she wanted phone contact with mother. If so,
CFS was authorized to permit monitored phone contact.
Termination of Legal Guardianship
On March 7, 2013, O.A. was hospitalized on an involuntary psychiatric hold under
section 5150. O.A. was released on March 14, but the next day placed back on a section
5150 hold because her thoughts of harm recurred. On March 26, 2013, during a family
meeting at Loma Linda Behavioral Medical Center (LLBMC), O.A. said, “[I]f she
returned to [Aunt’s] home, she would burn down the house with [Aunt] inside.” Aunt did
not feel safe but did not want O.A. to get lost in the system. Therefore Aunt did not want
to relinquish legal guardianship and wanted O.A. to return home after she received
mental health services addressing O.A.’s suicidal and homicidal thoughts. CFS
concluded O.A. required a level of care beyond that which Aunt could provide. On
March 28, 2013, O.A. began taking Zoloft, in addition to taking Risperdal. O.A. was
discharged from LLBMC and placed in a new foster home. O.A. said she was glad to
leave LLBMC and not return to Aunt’s home.
Supplemental Juvenile Dependency Petition
On April 2, 2013, CFS filed a section 387 supplemental petition, alleging that
O.A.’s behavior was beyond Aunt’s ability to care for her. At the detention hearing on
April 3, 2013, the juvenile court found that O.A.’s placement with Aunt was no longer
effective or appropriate and O.A. was ordered placed in foster care. On April 19, 2013,
O.A. reported that another female foster child in her foster home had “molested” and
“inappropriately touched” her. O.A. was moved that same day to the foster home of
11
A.S., who only spoke Spanish and had two biological children and one six-year-old foster
child. O.A. said she liked her new placement.
Jurisdiction/Disposition Hearing on Supplemental Petition
In the May 7, 2013 jurisdiction/disposition report, CFS recommended legal
guardianship be terminated and O.A.’s permanent plan changed to a Planned Permanent
Living Arrangement (PPLA). The social worker reported that, when the social worker
told O.A. she could write to mother and her letter would be mailed to mother, O.A.
“shrugged it off” and said she did not like to write. O.A. had not visited with mother
since mother was incarcerated in 2005.
At the review hearing on May 7, 2013, mother’s attorney objected to O.A. taking
psychotropic medication. Mother believed O.A.’s behavioral issues were attributable to
something occurring while O.A. was living with Aunt or because phone calls between
mother and O.A. suddenly stopped in February 2012. Mother requested face-to-face
visits with O.A. at the prison and phone calls. O.A.’s attorney objected to face-to-face
visitation. The court denied face-to-face visitation in prison on the ground it was not in
O.A.’s best interest, and granted CFS’s request to have A.S. assessed for placement.
On June 7, 2013, CFS filed a report stating that O.A. had said she did not want to
visit mother in prison. When asked on May 30, 2013, if O.A. wanted to see mother in
prison, O.A. said, “I think that would be scary and I don’t want to do that.” CFS reported
that O.A. was healthy and happy in her current placement with A.S., and wanted to
remain there. CFS recommended terminating O.A.’s legal guardianship with Aunt and
Uncle.
12
On June 11, 2013, at the jurisdiction/disposition hearing on the section 387
supplemental petition, the court found true the allegations in the petition, ordered
jurisdiction over O.A., and ordered O.A. removed from her legal guardians, Aunt and
Uncle. O.A.’s permanent plan became a PPLA in which O.A. was to remain with her
current caretaker, A.S. The court rejected mother’s request for in-prison visitation but
authorized letters and phone calls if O.A. requested them. The court denied mother’s
request F.S. be assessed for a concurrent planning home.
On July 11, 2013, mother filed a notice of appeal of the June 11, 2013 order.
Second Appeal (October 15, 2013 Order)
Section 388 Petition
On August 13, 2013, mother filed a section 388 petition, seeking reunification
after she completed her prison sentence, in-prison visitation, cessation of O.A. taking
psychotropic medication, permanent placement of O.A. with F.S., sibling visitation with
E.A., transportation of mother to and from court hearings, and transfer of the case back to
Los Angeles. Mother acknowledged O.A. had mental health problems but believed they
should be addressed by changing O.A.’s therapy and therapist. O.A. alleged that O.A.’s
legal guardians had brainwashed O.A. into opposing visitation with mother, and Aunt
was deceitful, manipulative, and lied.
CFS reported in its August 2013 review reports that O.A. was doing well in her
foster home, was happy there, did not want to move, and had bonded with A.S. and her
family. O.A. continued to do well in school. O.A. declined CFS’s offer to arrange for a
13
conference call with mother in prison. CFS recommended O.A. continue her
psychotropic medication. The court continued all prior orders.
CFS reported in its response to mother’s section 388 petition that O.A. said she did
not want to live with F.S. and did not want to visit mother in prison. The social worker
concluded O.A. was not ready to interact with mother, including talking to her. The
social worker believed such contact might open emotional wounds, which O.A. was not
equipped or ready to handle. CFS recommended O.A. remain in her current foster home.
On October 15, 2013, at the hearing on mother’s section 388 petition, the court
denied all requested relief, with the exception the court ordered that mother’s letters and
phone calls to O.A. were to be supervised and scheduled by the social worker.
In November 2013, Mother filed a notice of appeal challenging the October 15,
2013 order.
Third Appeal (February 28, 2014 Order)
During a nonappearance review update on January 24, 2014, the juvenile court
stated that O.A. was happy, pleasant and easy going in her foster home. At times she is
restless and easily bored. O.A. denied having thoughts of harming others or having any
hallucinations. O.A. reported she felt safe in her current placement. Dr. Cho reported
that on January 24, 2014, O.A. was taking Risperdal (0.5 mg) and Zoloft (100 mg). Dr.
Cho would continue to monitor O.A. monthly, with the goal of continuing Zoloft and
discontinuing Risperdal.
The juvenile court further reported in its January 24, 2014 review report that O.A.
had received individual therapy from Center for Healing Childhood Trauma. O.A.’s
14
therapist recommended O.A. continue therapy to address feelings about mother and
abandonment. O.A. did not want to participate in therapy. O.A. would continue to be
monitored by CFS, the foster care agency, and the Department of Behavioral Health
(DBH). All prior orders were ordered in full force and effect.
On February 7, 2014, and again on February 11, 2014, mother filed numerous
documents with the court, including (1) a request for a telephone court appearance
because she was incarcerated and (2) a supporting declaration stating mother spoke to
O.A. by phone on December 16, 2013, and requesting: (a) O.A. visit mother in prison by
participating in the “Get on the Bus” event on Mother’s Day, (b) the court order O.A.
have a mentor and court-appointed special advocate (CASA), (c) copies of O.A.’s
progress/report cards, (d) bimonthly phone calls with O.A., (e) visitation between O.A.
and E.A., and (f) participation in the enhanced visiting program. Mother also filed an
order for prisoner’s appearance at hearings affecting parental rights; a prisoner’s
statement regarding appearance at hearing affecting parental rights on February 28, 2014;
and copies of various articles on the parent project and the get on the bus program. In
addition, mother filed a copy of her application, dated December 16, 2013, for services
through the California Institution for Women (CIW) enhanced visiting program. The
juvenile court granted mother’s request to appear by telephone at the PPR hearing on
February 28, 2014.
On February 20, 2014, CFS filed a PPR hearing report stating that O.A. continued
to do well in her foster home and had bonded with her foster family. O.A. stated that she
wanted her foster family to obtain guardianship of her and she did not want to move from
15
her foster home. O.A. has been in her current foster home since April 19, 2013. Her
foster family speaks primarily Spanish. O.A. has embraced the Hispanic culture of her
foster family.
O.A. has not reported any self-harm thoughts and her foster mother did not report
any concerns regarding O.A. having paranoia, hallucinations or suicidal ideation. O.A.
was offered a CASA, which O.A. declined. She continued receiving mentoring services
from the inter-agency youth resiliency team.
O.A. told the social worker she did not want to visit mother in prison. Before
O.A.’s supervised telephone conversation with mother on December 16, 2013, O.A. told
the social worker she was apprehensive about speaking with mother and did not know
what to say to her. After the conversation, the social worker asked O.A. why most of her
responses to mother’s questions were untrue. O.A. said she did not want mother to ask
her “why” or continue questioning her. On January 14, 2014, O.A. told the social worker
she did not want another phone call with mother. O.A. did not have any additional phone
conversations with mother because O.A. was opposed to the phone calls.
CFS further reported that O.A. is healthy, is in eighth grade, and is doing well in
school. Dr. Cho sees O.A. monthly for monitoring her mental health. She currently is
taking Risperdal 0.5 mg to target psychosis and Zoloft 100 mg for depression. The goal
is to keep O.A. on Zoloft and take her off Risperdal. O.A. completed wraparound
services and received individual therapy at Center for Healing Childhood Trauma to
address O.A.’s feelings of abandonment and her feelings regarding mother. O.A. does
not want to continue therapy. She is not experiencing any behavioral issues and has not
16
resumed therapy. A foster family agency social worker visited O.A. weekly. The social
worker reported O.A. enjoyed a nurturing relationship with her foster family. The social
worker also reported O.A. was taking her medication daily to treat her depression and
was responding well to the medication. O.A. is not currently eligible to participate in
independent living plan (ILP) services. She is too young for emancipation. Although
O.A. wants her foster family to obtain legal guardianship of her, her foster parents would
like O.A. to remain in their home in long-term foster care. CFS concluded PPLA
remained the most appropriate plan for O.A.
On February 26, 2014, CFS filed an application regarding psychotropic
medication, form JV 220, requesting that O.A. continue taking Zoloft 100 mg for
depression. CFS also requested O.A. also be permitted to take Benadryl as needed at
bedtime. CFS reported that O.A. had stopped taking Risperdal. The form states that
O.A. agreed to continue taking the medication and her caregiver also agreed to O.A.
taking the medication. A consulting physician’s statement approving the medication
request was included with the psychotropic medication application. Mother was provided
notice of the medication application.
During the PPR hearing on February 28, 2014, O.A. stated that she did not like
visits (phone visits) with mother, did not want to visit mother in prison, did not want to
write to mother, and did not want to receive letters from mother. O.A. said that her
medication was okay. At the hearing, mother requested phone visits. She also requested
O.A. participate in the “Get on the Bus Mother’s Day Event” and enhanced visiting
program at the prison. Mother said she wanted to develop a connection with O.A. and
17
bond with her. At the time of the hearing, O.A. had been out of mother’s care for nine
years. Mother also requested that her relatives be permitted to visit O.A. The court
granted relative visitation, conditioned upon O.A. consenting to it. O.A. said she did not
want to visit with relatives. In addition, mother wanted O.A. to stop taking medication.
Mother informed the court that during her last telephone conversation with O.A. in
December 2013, O.A. asked her why mother was in prison and mother did not feel she
could fully respond to the question because she did not know how much she could tell
O.A. The court asked O.A. if she wanted mother to tell her why she was in prison. O.A.
said yes, and the court told mother to tell her. Mother said O.A., mother and father were
in the car, when father started shooting out of the car while mother was driving. Father
then pointed the gun at mother and told her to continue driving.
The court noted that it had encouraged O.A. to engage in contact with mother,
whose anticipated release was in 2016. The court added that O.A.’s own actions
ultimately would determine whether she maintained a relationship with mother. Mother
requested telephonic conjoint therapy with O.A. The court responded that O.A. was not
in therapy and denied mother’s request for telephonic conjoint therapy, concluding it was
beyond the court’s resources and would not be effective. The court adopted the CFS
recommended findings and orders. The court granted the psychotropic medication
request for O.A. and found there was no adult available to become O.A.’s guardian. The
court ordered O.A. remain in her current foster home with a plan of PPLA. The court
18
continued the existing order allowing supervised letter and telephone contact with
mother. The court continued the matter to August 29, 2014, for a PPR hearing.5
On April 2, 2014, mother filed a notice of appeal of the February 28, 2014 order –
“particularly in regards to visitation with the minor and administration of psychotropic
medications to the minor.”
III
2013 PSYCHOTROPIC MEDICATION ORDER
Mother contends substantial evidence does not support the juvenile court’s order
on May 17, 2013, and subsequent orders authorizing the administration of psychotropic
medication to O.A.
A. Background Facts Regarding Psychotropic Medication
In December 2011, LACFS reported that O.A. was experiencing serious mental
health issues. O.A.’s therapist stated that over the past year O.A. had revealed repressed
memories of incidents that occurred when she was with her parents. These memories
were resurfacing and causing anxiety and paranoia. The court ordered O.A. undergo a
psychiatric examination. O.A. was diagnosed with psychosis and prescribed Risperdal on
March 1, 2012. LACFS submitted a request to the juvenile court on March 7, 2012, for
administration of Risperdal. Mother did not object to the request, and the court approved
the case plan, which included providing O.A. with counseling, a psychotropic medication
5 On September 10, 2014, mother filed a notice of appeal of the August 29, 2014
order (case No. E061875).
19
evaluation, and monitoring. LACFS and O.A.’s attorney reported that, since O.A. began
taking Risperdal, O.A.’s mental condition had improved.
After the case was transferred from Los Angeles County to San Bernardino
County, CFS reported in November 2012, that O.A. was being evaluated for psychotropic
medication and Dr. Multani had prescribed Risperdal. The CFS health report indicated
O.A. began taking Risperdal on October 3, 2012. CFS reported in February 2013, O.A.
was seen monthly by Dr. Multani and CFS had submitted an application for a physician’s
supporting statement for psychotropic medication (Physician’s Assessment JV 220 A
form).
On March 7, 2013, O.A. was placed on hold under section 5150, released on
March 14, and readmitted the next day. CFS prepared an Application Regarding
Psychotropic Medication (form JV 220), dated March 13, 2013, requesting O.A. be
permitted to continue taking Risperdal and begin taking Zoloft for depression. The
request form was based on Dr. Murdoch’s evaluation of O.A. on March 13, 2013, while
O.A. was hospitalized under section 5150. O.A. was diagnosed with “Major Depressive
Disorder, Severe, Recurrent with Psychotic Features.” The psychotropic medication
request form, however, was not filed with the juvenile court until May 15, 2013. On
March 28, 2013, O.A. began taking Zoloft, in addition to Risperdal.
At the review hearing on May 7, 2013, mother objected to O.A. taking
psychotropic medication. The court stated it did not have mother’s opposition, filed on
April 11, 2013. O.A.’s attorney stated she had not received mother’s opposition. The
court therefore continued the matter.
20
On May 15, 2013, CFS filed its application for psychotropic medication for Zoloft
and Risperdal, along with a consulting physician’s statement stating that the proposed
medication was appropriate. The application was granted on May 17, 2013. On May 21,
2013, mother filed a second Opposition to the Application Regarding Psychotropic
Medication (form JV-222). Mother stated she was resubmitting her April 2013
opposition because the court indicated at the May 7, 2013 hearing that her opposition was
not in the court file. Mother wanted to know why O.A. had been receiving psychotropic
medication since March 2013, without prior court approval.
On June 11, 2013, at the jurisdiction/disposition hearing, mother requested the
psychotropic medication be immediately discontinued or, alternatively, gradually
stopped. The court requested CFS to provide the court with DBH’s recommendation on
whether to decrease O.A.’s Risperdal and Zoloft dosages. On June 25, 2013, Dr. Cho
evaluated O.A. and recommended O.A. continue on Zoloft (100 mg) and Risperdal (2
mg), and begin taking Benadryl for insomnia.
On July 16, 2013, the juvenile court held a nonappearance review, ordered all
prior orders remain in full force and effect, and referred O.A. to DBH. On July 18, 2013,
mother filed another notice of objection to O.A. taking psychotropic medication, and in
August 2013, mother filed her section 388 petition requesting the jurisdiction/disposition
order on June 11, 2013, modified to terminate administration of psychotropic medication
to O.A.
On September 6, 2013, DBH assessor, Dr. Galang-Feather, reported that O.A.’s
foster mother believed O.A. had improved while in her care. She was less fearful, got
21
along with others better, and was happy. Dr. Galang-Feather noted that Dr. Cho
diagnosed O.A. with Major Depressive Disorder, recurrent, severe with psychotic
features, and recommended O.A. continue her medications of Risperdal and Zoloft. Dr.
Cho was planning on decreasing the dosage of Risperdal if O.A. continued to do well,
and added Benadryl for insomnia. Dr. Galang-Feather agreed with attempting to
decrease Risperdal and possibly stop it, administer Benadryl if O.A. had recurring sleep
problems, and continue the Zoloft.
At the hearing on October 15, 2013, the juvenile court denied mother’s section
388 petition request to change O.A.’s medication plan. The court stated, however, it
wanted to closely monitor the administering of psychotropic medications. The court
ordered CFS to submit a packet in 60 days on O.A.’s status, behavior, and medication.
B. Appeal of May 17 and June 11, 2013 Orders Authorizing Psychotropic Medication
In mother’s appellant’s opening brief, she asserts that O.A. began taking Risperdal
before CFS properly obtained court approval for administering psychotropic medication
to O.A. under section 369.5. O.A. began taking the medication months before mother
was given proper notice and before the court authorized administering the medication. In
addition, mother argues CFS’s application for psychotropic medication did not discuss
the negative side effects of the drugs. Mother also argues that she established in her
opposition that Zoloft should not be given to O.A. because it was not approved for
children under 18 years old, except those suffering from Obsessive Compulsive Disorder;
it can negatively affect brain development; and Zoloft can increase aggressiveness and
22
suicidal thoughts, particularly in children. In addition, there was a medical recall and
alert for Zoloft.
The record shows that, although O.A. may have begun taking Risperdal and Zoloft
before the court granted approval of the CFS’s application to administer psychotropic
medication, the medication was approved on May 17, 2013, and there was substantial
evidence supporting approval. O.A. had an extensive history of suffering from severe
mental problems and her treating physicians and therapist had all been in favor of O.A.
receiving the medication. There was also evidence that O.A.’s mental condition
significantly improved after she began taking the medication. The record shows that the
medications’ potential side effects were disclosed to the court and mother, and mother
provided the court with information on side effects, as well, in her opposition to the
applications for psychotropic medication. Mother has not established by means of
reliable expert opinion evidence that the risk of potential side effects from the medication
outweighed the benefits of O.A. taking psychotropic medication, which was universally
recommended by O.A.’s health care providers and those evaluating O.A.
Furthermore, mother’s objections to the juvenile court’s May 17, 2013 order
granting CFS’s application for psychotropic medication is moot because the order
expired after six months,6 and the May 17 and June 11, 2013 orders were superseded by
6 California Rules of Court rule 5.640, subdivision (f), provides: “If the court
grants the request or modifies and then grants the request, the order for authorization is
effective until terminated or modified by court order or until 180 days from the order,
whichever is earlier. If a progress review is set, it may be by an appearance hearing or a
report to the court and parties and attorneys, at the discretion of the court.”
23
the August 30, 2013 and October 15, 2013 orders, in which the court ordered
continuation of the existing psychotropic medication orders. After the court granted the
psychotropic medication application in May 2013, O.A. was reevaluated by Dr. Cho on
June 25, 2013, and by Dr. Galang-Feather on August 28, 2013, who both recommended
O.A. continue taking Risperdal, Zoloft, and Benadryl, but suggested attempting to
decrease Risperdal, if appropriate.
C. Appeal of October 15, 2013 Order Denying Mother’s Section 388 Petition
Mother contends in her supplemental appellant’s opening brief that the juvenile
court abused its discretion in denying her section 388 petition seeking modification of the
June 11, 2013 order authorizing administration of psychotropic medication to O.A.
1. Applicable law
“A juvenile court order may be changed, modified or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new or changed
circumstances exist, and (2) the proposed change would promote the best interest of the
child. [Citation.] The parent bears the burden to show both ‘“a legitimate change of
circumstances”’ and that undoing the prior order would be in the best interest of the child.
[Citation.] The petition is addressed to the sound discretion of the juvenile court, and its
decision will not be overturned on appeal in the absence of a clear abuse of discretion.
[Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].)
In evaluating whether mother met her burden to show changed circumstances, the
trial court should consider: (1) the seriousness of the problem which led to the
dependency, and the reason for any continuation of that problem; (2) the strength of
24
relative bonds between the dependent children to both parent and caretakers; and (3) the
degree to which the problem may be easily removed or ameliorated, and the degree to
which it actually has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) These
factors become less significant once reunification services have been terminated, as in the
instant case. This is because, “[a]fter the termination of reunification services, . . . ‘the
focus shifts to the needs of the child for permanency and stability’ [citation] . . . .” (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
2. Discussion
Mother stated in her section 388 petition filed in August 2013, that circumstances
had changed after the court granted administration of psychotropic medication to O.A. on
May 17, 2013, and ordered the medication continued at the jurisdiction/disposition
hearing on June 11, 2013. Mother said she recently received a notice that O.A.’s
medication was being increased. Risperdal was being increased from 2 mg to 6 mg per
day, and Zoloft was being increased from 100 mg to 200 mg, with Benadryl added for
insomnia. But the record does not support any significant changed circumstances in this
regard.
On June 11, 2013, the court ordered O.A. referred to DBH for an assessment
regarding continuing her psychotropic medications. On June 25, 2013, Dr. Cho at DBH
evaluated O.A. and maintained her on Zoloft 100 mg once a day and Risperdal 2 mg once
a day, which was the same dosage approved May 17 and June 11, 2013. At the July 16,
2013, nonappearance review of O.A.’s psychotropic medications, the juvenile court
confirmed Dr. Cho’s assessment and current medication status. The August 7, 2013 CFS
25
Health and Education Passport report also states that O.A.’s dosage for Zoloft remained
100 mg, beginning in March 2013, and O.A.’s dosage for Risperdal remained 2 mg,
beginning in October 2012, as recommended by Dr. Cho. The September 2013 DBH
assessment report indicates Drs. Cho and Galang-Feather suggested attempting to
decrease O.A.’s Risperdal dosage if O.A. continued to do well.
At the hearing on mother’s section 388 petition on October 15, 2013, the juvenile
court therefore denied mother’s request to stop the psychotropic medications but did not
preclude the possibility of a reduction. The court ordered that CFS was to submit a
packet within 60 days regarding O.A.’s behavior, along with a medication report
regarding the possibility of reducing O.A.’s medication dosages. The record shows
mother did not establish O.A.’s medication dosages were increased, nor did she establish
that it was in O.A.’s best interest to decrease or stop her medication. Although there was
evidence O.A.’s mental condition had improved, this may have been because of the
psychotropic medication. Mother has not established that there would not be any adverse
effects, such as O.A. regressing, if she stopped taking the medication. Physicians
suggested trying a reduction, and the court therefore ordered an evaluation and
recommendation regarding doing so. The juvenile court’s October 15, 2013 order
denying modification of the June 11, 2013 order regarding administering psychotropic
medication was appropriate and therefore not an abuse of discretion.
26
IV
2013 VISITATION ORDERS
Mother appeals the June 11 and October 15, 2013 visitation orders. These orders
are the same, with the exception the June 11 order, not only prohibited in-prison
visitation, but also prohibited mother contacting O.A. by correspondence and phone
unless O.A. requested such contact. The October 15, 2013 order modified the June 11
order by ordering CFS to schedule supervised phone calls for mother and allow
monitored correspondence. Mother’s objection to the June 11, 2013 visitation order is
moot because it was superseded by the October 15, 2013 visitation order.
October 15, 2013 Order
As to mother’s appeal of the October 15, 2013 order regarding visitation, mother
cites In re Julie M. (1999) 69 Cal.App.4th 41, 49-50, for the proposition that permitting
O.A. to decide for herself whether she wanted to receive mother’s calls and
correspondence was an improper delegation of discretion. But the juvenile court’s order
on October 15, 2013, was not an improper “abdication of governmental responsibility,”
“[g]iving [O.A.] unbridled discretion to control visitation.” (Id. at pp. 49-50.)
Phone Calls and Letters
On October 15, 2013, the court authorized monitored correspondence and
telephone calls, with ultimate discretion placed with CFS, as to scheduling phone calls
and allowing O.A. to receive mother’s letters, if appropriate. Although the court and
mother acknowledged O.A. could not be forced to talk to mother, the court did not
27
delegate discretion to O.A. as to allowing mother’s calls and letters. Rather, the court
ordered CFS to facilitate mother’s phone calls to O.A. and exchange of letters.
During the hearing on October 15, 2013, mother told the court she wanted O.A.’s
phone number to call her and scheduled phone calls with O.A. The social worker stated
she had offered O.A. the opportunity to speak with mother on the phone and O.A.
declined the offer. Mother conceded at the hearing, “I believe the discretion should be
allowed to my daughter.” The court responded that it was allowing mother to have phone
calls with O.A. but the court could not force O.A. to talk to mother on the phone. Mother
replied that she understood this but wanted contact with O.A. or things would get worse.
The court agreed and ordered “Phone call and letters supervised and scheduled by Social
Worker. Schedule a phone call, and say, ‘I’m calling your mother,’ and hand her the
phone. She can talk or not.” The court then granted mother’s section 388 petition with
regard to modifying the June 11, 2013 order to all monitored letters and phone calls.
The court order stated: “Visitation: social worker authorized to supervise and
schedule letter and telephone contact with mother while in custody.” The court left
discretion in the CFS to schedule letter and telephone contact. On October 15, 2013, the
court thus granted modification of the June 11, 2013 visitation order by no longer
conditioning mother’s calls and correspondence on O.A. requesting them. We therefore
reject mother’s contention that the juvenile court improperly delegated to O.A. the
authority to decide whether mother could call O.A. and send her letters. We also note
that mother did not object in her notice of appeal, to the October 15, 2013 order
authorizing phone calls and letters.
28
Changed Circumstances
With regard to the October 15, 2013 order denying modification of the June 11,
2013 order denying in-prison visitation, we conclude there was no abuse of discretion,
since mother failed to show changed circumstances or that granting mother’s section 388
petition to allow in-prison visitation was in O.A.’s best interests. (In re S.J., supra, 167
Cal.App.4th at pp. 959-960; In re Stephanie M., supra, 7 Cal.4th at p. 317.) Mother did
not establish any change of circumstances regarding visitation, between June 11, 2013,
and the hearing on the section 388 petition on October 15, 2013. Mother still was in
prison and O.A. continued to say she did not want to visit mother in prison. O.A. also
had indicated she did not want to talk to mother on the phone. As to monitored
correspondence and phone calls, the October 15, 2013 order permitted them, if
appropriate.
Best interests
Mother also has not established that modifying the June 11, 2013 visitation
prohibiting in-prison visitation was in O.A.’s best interests. Mother argues the court
applied the wrong standard of review by finding visitation was not in O.A.’s best
interests. We disagree. Although the juvenile court is required to apply the detriment
standard under section 366.26, subdivision (c)(4)(C), when ruling on visitation, the best
interest standard applied here because the court was ruling on mother’s section 388
petition. Even if the detriment standard applies, essentially the same evidence relied on
in applying the best interests standard supported a finding of detriment.
29
The court’s finding that it was not in O.A.’s best interests to grant mother’s section
388 petition request to modify the June 11, 2013 in-prison visitation order was supported
by overwhelming evidence. There was evidence O.A.’s attorney, treating physicians,
therapist, foster mother, and the social worker all agreed that in-prison visitation should
not be permitted and would be potentially detrimental to O.A.
Mother argues that Dr. Galang-Feather’s recommendation O.A. participate in
family therapy supports a finding that in-prison visitation was in O.A.’s best interests.
But Dr. Galang-Feather’s reference in her report to family therapy most likely did not
refer to family therapy with O.A.’s biological parents while they were in prison but,
rather, referred to therapy with her foster family. Dr. Galang-Feather did not recommend
in her report that O.A. have any contact with mother, and noted that O.A., who was 13
years old, told Dr. Galang-Feather that she chose not to write mother and felt upset when
she thought about what mother had done. O.A. had expressed fear of visiting mother in
prison and a desire not to speak to mother. The juvenile court appropriately took into
consideration O.A.’s fragile mental state, her expressed desires, and the emotional trauma
visitation would likely have on O.A. We conclude there was no abuse of discretion in
denying mother’s section 388 petition request to modify the June 11, 2013 in-prison
visitation order.
V
SECTION 388 PETITION
Mother asserts in her supplemental appellant’s opening brief that the juvenile
court abused its discretion in denying her section 388 petition seeking modification of the
30
June 11, 2013 order denying assessment of mother’s friend, F.S., for placement. Mother
argues that this was an abuse of discretion because F.S. qualified as a nonrelated
extended family member (NREFM) and placing O.A. with her was in O.A.’s best
interests.
A. Factual Background
On June 11, 2013, at the jurisdiction/disposition hearing on the section 387
supplemental petition, the court ordered O.A. removed from her legal guardians, Aunt
and Uncle. Mother requested F.S. be assessed for a concurrent planning home. The
social worker informed the court F.S. had called her and had said the last time F.S. had
seen O.A. was about four years ago. In addition, O.A. had told the social worker O.A.
did not remember F.S. and was not sure about being placed with her. The court rejected
mother’s request F.S. be assessed for a concurrent planning home, and ordered a planned
permanent living arrangement in which O.A. was to remain with her current foster
mother, A.S.
In August 2013, mother filed her section 388 petition, requesting modification of
the June 11, 2003 order denying assessment of F.S. for placement. CFS reported in its
response to mother’s section 388 petition that in May 2013, F.S. had contacted CFS and
requested O.A. placed with her. F.S. said she had been O.A.’s day care provider for
about four years and was a long-time friend of mother. O.A. had also spent the summer
with F.S. in 2009. F.S. had also provided respite care for O.A. for about two months in
2006. On June 3, 2013, the social worker told O.A. mother would like O.A. placed with
F.S. O.A. said she did not remember F.S. But on October 7, 2013, O.A. said she
31
remembered she had lived with F.S. for a short time. O.A. did not recall how long she
was there or her age. O.A. stated, “‘I don’t have good memories of living with her.’”
O.A. did not elaborate. O.A. said she did not want to live with F.S.
At the hearing on October 15, 2013, on mother’s section 388 petition, the court
denied mother’s petition to modify the June 11, 2013 order for the purpose of allowing an
assessment of F.S.’s home for possible placement.
B. Applicable Law
The court must make orders for the care and custody of a child adjudged a
dependent child. (§ 361, subd. (a).) When a child is ordered removed from his or her
parents, the court must place the child under the supervision of the social worker, who
may make any one of four specified placements. (§ 361.2, subd. (e).) The only
placement option relevant here is: “[t]he approved home of a nonrelative extended
family member [NREFM] as defined in Section 362.7.” (§ 361.2, subd. (e)(3).) “In
1995, recognizing the importance of continuity of community, school, church and friends
to dependent children who have been removed from their families, the Legislature
enacted section 362.7, which permits a county welfare department to place a dependent
child in the home of a NREFM. [Citations.]” (In re Michael E. (2013) 213 Cal.App.4th
670, 674; Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 108.) Section 362.7
defines a NREFM as “any adult caregiver who has an established familial or mentoring
relationship with the child. The county welfare department shall verify the existence of a
relationship through interviews with the parent and child or with one or more third
32
parties. The parties may include relatives of the child, teachers, medical professionals,
clergy, neighbors, and family friends.”
C. Discussion
Mother cites In re Michael E., supra, 213 Cal.App.4th 670 for the proposition the
juvenile court abused its discretion in rejecting her request to assess F.S. for placement as
a NREFM. Relying on Samantha T. v. Superior Court, supra, 197 Cal.App.4th 94, the
court in Michael E., supra, stated: “An NREFM placement may be appropriate in cases
where the child does not have an existing relationship with the individual seeking
NREFM status, if that individual has a close connection with the child’s family and
placement will further the legislative goals of allowing the child to remain in familiar
surroundings, facilitating family reunification or providing a culturally sensitive
environment to the child.[] [Citation.] Thus an individual may qualify as a NREFM
under the express terms of the statute or within the legislative goals of the statute.
[Citation.]” (Michael E., at p. 675.) Any placement must also be in the child’s best
interest. (Ibid.)
In Michael E., the incarcerated father requested the juvenile court to order his
fiancée assessed for placement of his son. Father’s fiancée was the mother of the child’s
infant half-sibling, but had never met father’s son. The court in Michael E. concluded it
was not an abuse of discretion for the juvenile court to deny ordering an assessment of
father’s fiancée on the grounds the fiancée did not personally come forward to request the
child’s placement in her home, the five-year-old child had been living with foster parents
for five months and developed a close relationship with them, the fiancée did not live in
33
the same part of town as the foster parents, and placement with the fiancée would disrupt
the child’s schooling and continuity of care in a familiar environment. The court in
Michael E. concluded: “Absent a need for a change of placement, placing [the child]
with someone he did not know would not be in his best interests. [Citation.]” (In re
Michael E., supra, 213 Cal.App.4th at p. 676.)
Here, at the time of the hearing on October 15, 2013, O.A. had lived with her
foster mother, A.S., for six months, was happy in her foster home, had bonded with her
foster family, and did not want to move. In addition, O.A. stated she did not want to live
with F.S., did not remember her initially, did not have fond memories of living with her,
and had not seen her for over four years. Also, mother did not establish that F.S. had a
close connection with the child’s family or that placement would “further the legislative
goals of allowing the child to remain in familiar surroundings, facilitating family
reunification or providing a culturally sensitive environment to the child.” (In re Michael
E., supra, 213 Cal.App.4th at p. 675.) The court could reasonably conclude placement
with F.S. was not in O.A.’s best interest. (Ibid.) NREFM placement does not override
O.A.’s interest in continuing in a stable nonrelative placement. Furthermore, there was
no showing of changed circumstances, which was also required in order for mother to
prevail on her section 388 petition to change the June 11, 2013 order denying mother’s
request to assess F.S. for placement. The juvenile court therefore did not abuse its
discretion in denying mother’s section 388 petition seeking modification of the June 11,
2013 order denying assessment of F.S. for placement.
34
THIRD CONSOLIDATED APPEAL (CASE NO. E060958)
VI
CFS’S REQUEST FOR DISMISSAL OF APPEAL
In response to mother’s third appeal filed in this court (case No. E060958), CFS
argues that this court should (1) grant CFS’s motion to incorporate the prior appellate
decisions in this case or, alternatively, grant CFS’s motion for judicial notice of the
decisions; and (2) grant CFS’s motion to dismiss the appeal in case No. E060958. This
court has already considered and ruled on CFS’s motions, which were filed separately
from CFS’s respondent’s brief. The motions contain the same arguments to dismiss
raised in CFS’s respondent’s brief. On September 16, 2014, this court granted CFS’s
request for judicial notice of the numerous previous appellate decisions in this matter, and
denied without prejudice CFS’s other motions, including CFS’s motion to dismiss
mother’s appeal in case No. E060958. Mother has filed eight appeals, including five in
the second district court and three in this court. In addition, mother has filed two
petitions for California Supreme Court review, which were denied, and recently filed a
ninth appeal in this court (E061875), which will be decided separately from the three
consolidated appeals decided in this decision.7
7 List of Mother’s Appeals:
1.a. In re E.A. & O.A. (11/13/06) 2006 Cal.App.Unpub. LEXIS 10240 [Second
Dist., Div. Three, B189905]
1.b. In re E.A. & O.A. (2/14/07) pet. for rev. denied, 2007 Cal.LEXIS 1581 [CA
Supreme Ct, S149227]
2. O.A. v. April A. (5/20/08) 2008 Cal.App.Unpub. LEXIS 4096 [Second
Dist., Div. Three, B202585]
[footnote continued on next page]
35
We note CFS’s arguments raised in its motion to dismiss are not entirely without
merit and, since this court denied CFS’s motion to dismiss without prejudice, the
arguments may be reconsidered in the future, in the event this court finds mother has filed
repetitious appeals which raise arguments this court or the Second District Court of
Appeal has already considered and rejected in this matter.
VII
THERAPY
Mother challenges the February 28, 2014 PPR order denying mother’s request
O.A. be provided with therapy, particularly mother/daughter conjoint therapy. Mother
contends substantial evidence did not support the juvenile court’s denial of therapeutic
services for O.A. Mother asserts the court violated its duty to ensure CFS provided O.A.
with adequate services, including appropriate mental health care. (§§ 366.3, subd. (e)(6),
[footnote continued from previous page]
3. In re E.A. (9/23/09) 2009 Cal.App.Unpub. LEXIS 7614 [Second Dist., Div.
Three, B215026]
4.a. In re E.A. (5/11/11) pet. for rev. denied, 2013 Cal. LEXIS 4459 [CA
Supreme Ct, S191515]
4.b. In re E.A. (1/18/11) appeal dismissed due to abandonment [Second Dist.,
B225693]
5.a In re. O.A. (6/6/13) appeal dismissed b/c repetitious litigation of same
issues [Second Dist., B245834]
5.b In re O.A. (9/11/13) pet. for rev. denied, 2013 Cal. LEXIS 7446 [CA
Supreme Ct, S212193]
6. In re O.A., pending in this court, filed 7/11/2013 [E059174]
(Appealed June 11, 2013 order)
7. In re O.A., pending in this court, filed 11/14/2013 [second appeal c/w
E059174]
(Appealed October 15, 2013 order)
8. In re O.A., pending in this court, filed 4/2/2014 [E060958 c/w E059174]
9. In re O.A., just filed in this court on 9/10/2014 [E061875]
36
16503, subd. (a).) CFS argues mother forfeited her objection to the court not ordering
conjoint therapy or individual therapy by not raising the objection in the juvenile court.
Mother, however, did request conjoint therapy by telephone and therefore her objection
regarding conjoint therapy was not forfeited.
Under sections 366.3, subdivision (e)(6), and 16503, subdivision (a), the juvenile
court was required to determine at the PPR hearing on February 28, 2014, whether O.A.
was receiving adequate services and order appropriate services. Mother argues that the
juvenile court should have ordered conjoint mother/daughter therapy services and
individual therapy for O.A., based on O.A.’s history of severe mental illness, O.A.’s
former therapist recommending therapy, and Dr. Galang-Feather recommending
individual and family therapy.
The juvenile court was not required to order conjoint therapy under the facts in
this case. There was substantial evidence that, although a year before the February 2014
PPR hearing, O.A. was suffering from serious mental issues, after her hospitalization in
March 2013, O.A.’s condition had greatly improved and she was doing well by February
2014. O.A. had stabilized on effective medication, moved to an appropriate foster home,
completed six months of wraparound services, and attended eight individualized therapy
sessions. Furthermore, O.A., who was 14 years old at the time of the February 2014 PPR
hearing, had stated several times that she no longer wanted to attend therapy and she did
not want to see or have any contact with mother. In addition, O.A.’s therapist and the
CFS social worker recommended that O.A. not be required to visit mother or have
37
contact with her unless O.A. wanted to do so. Under such circumstances, the juvenile
court appropriately rejected mother’s request for conjoint therapy.
Mother argues that conjoint therapy was necessary and therefore should have been
ordered because O.A. needed to resolve her conflicts with mother, which interfered with
O.A.’s relationship with mother. But there was substantial evidence it would have been
counterproductive, harmful, and not in O.A.’s best interests to force O.A. to participate in
conjoint therapy, when O.A. clearly and repeatedly indicated she did not want to
participate in additional therapy or have any contact with mother.
Mother’s reliance on Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, for
the proposition the juvenile court erred in failing to order conjoint therapy is misplaced.
In Nahid H., the children were separated from their mother when the mother sent her
children to the United States from war-torn Iraq. Mother escaped Iraq four years later.
Because the children were placed in foster care and one of the children was sexually
abused, the children were angry at mother and did not want to have any contact with her
or live with her. The juvenile court conditioned the mother’s contact with the children
upon the children requesting contact. The Nahid H. court reversed, concluding there had
been no psychological evaluations or therapy ascertaining and ameliorating the causes of
the estrangement between the mother and children. The court also stated it was improper
for the juvenile court to give the children veto power over contact with mother. (Id. at
pp. 1070-1071.)
Unlike in Nahid H., in the instant case, mother had been incarcerated for 10 years
and her release is not anticipated until 2016. It was not possible for O.A. to live with
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mother while mother was incarcerated and O.A.’s therapist recommended O.A. not visit
mother in prison or be forced to have contact with her. The record also shows that CFS
provided O.A. with many years of therapy and made a concerted effort to provide O.A.
with services to assist her in remaining connected with mother during mother’s lengthy
incarceration.
Although O.A.’s therapist and Dr. Galang-Feather recommended continued
therapy, they did not recommend conjoint therapy between mother and O.A. Dr. Galang-
Feather includes in her list of recommendations, “Family therapy,” but there is no
discussion regarding this recommendation in her report and it is unclear as to whether she
is recommending therapy between O.A. and O.A.’s foster family, as opposed to therapy
involving parents, who are both incarcerated. It was reasonable for the juvenile court to
reject conjoint therapy, since mother was incarcerated, and O.A. did not want to
participate in therapy or have contact with mother. O.A. had not visited with mother
since her incarceration in 2005, and O.A. was doing well, after struggling with serious
mental illness.
Furthermore, even though the juvenile court did not order CFS to provide conjoint
therapy services, O.A. was not precluded from receiving individualized therapy in the
event CFS or the court concluded O.A. needed it and O.A. requested it. O.A.’s case plan
included general counseling and psychiatric monitoring. The juvenile court ordered that
CFS was authorized to consent to routine medical, mental health, and dental care by a
licensed practitioner and release information to Healthy Homes Center for Healing
Childhood Trauma and Christian Counseling Services necessary to obtain medical,
39
mental, or dental care for O.A. In addition, CFS, the Foster Care Agency, and the DBH
continued to monitor O.A.’s placement, mental health and emotional well-being in order
to ensure O.A. received appropriate and adequate services. Although mother suggested
at the 2014 PPR hearing that individual therapy would be beneficial, she did not request it
for O.A. and therefore forfeited her objection on appeal. Even if not forfeited, the
juvenile court did not err in not ordering therapy since there was substantial evidence
O.A. was doing well, was being monitored by her doctor, and did not want to participate
in therapy at that time. The court could have reasonably concluded that under such
circumstances forcing O.A. to participate in therapy was not necessary and not in O.A.’s
best interests.
VIII
DELEGATION OF VISITATION AUTHORITY
Mother contends the trial court ruling on February 28, 2014, denying face-to-face
visitation, improperly delegated the juvenile court’s authority to O.A. to determine
whether visitation would occur. We disagree.
During the February 2014 PPR hearing, the juvenile court noted that the court had
previously encouraged O.A. to engage in contact with mother. The court added that it
ultimately was up to O.A. to take action to maintain a relationship with mother. The
court denied mother’s request for telephonic conjoint therapy, continued the existing
orders allowing supervised letter and telephone contact with mother, and adopted CFS’s
recommended orders, which did not include an order allowing face-to-face visitation with
mother.
40
In support of mother’s challenge to the February 28, 2014 ruling denying face-to-
face visitation, mother argues the juvenile court’s following statements demonstrate the
court improperly delegated its visitation authority to O.A.:
“[O.A.], I have encouraged you in the past to engage in visitation or contact with
your mother, and I’m not really seeing much has changed with that. [¶] So Social
Worker, please continue to talk to [O.A.] about visitation with her mother, phone,
telephone, and this special program at the prison that the mother has attached, “Get on the
Bus,” to see if [O.A.] wants to participate in that.”
The juvenile court further stated:
“The only thing I can tell you, [mother], is that we’re all encouraging [O.A.] to
keep a relationship with you, but ultimately, it is going to be her own actions – [¶] . . . as
far as following through on that relationship . . . .”
When the juvenile court made these statements, the court did not give O.A. sole
discretion to decide whether to visit mother. The court simply indicated that the court
and CFS were encouraging O.A. to maintain a relationship with mother and interact with
her; that CFS should not force O.A. to visit or have contact with mother; and that O.A.’s
actions ultimately would determine whether O.A. maintained a relationship with mother.
In section IV of this opinion we address and reject mother’s similar objections to
the June 11 and October 15, 2013, visitation orders. Mother provides no material new
facts or grounds for finding an abuse of discretion and reversing the juvenile court’s
February 2014 PPR order. Mother remains incarcerated; O.A. is opposed to visiting her;
social workers and therapists advise against ordering O.A. visit mother in prison; and
41
under In re Danielle W. (1989) 207 Cal.App.3d 1227 (Danielle W.), there was no
improper delegation of the juvenile court’s visitation authority to O.A.
Mother argues the instant case is distinguishable from Danielle W., in which the
court upheld the juvenile court visitation order, observing: “[A]ppellant mischaracterizes
the juvenile court’s visitation order: the juvenile court did not delegate all control over
visitation. The juvenile court, rather than ordering no visitation at all (despite evidence to
support a finding that visitation by appellant would be detrimental to and not in the best
interests of the children), ordered visitation under specific conditions.” (Danielle W.,
supra, 207 Cal.App.3d at p. 1233.)
In Danielle W., supra, 207 Cal.App.3d at pages 1230-1239, the mother in a
juvenile dependency case, appealed from the visitation portion of the disposition order.
The mother argued that the order delegated all control over visitation to the social worker
and the two children and therefore was an abuse of discretion, a denial of due process, an
unauthorized delegation of judicial power, and an extra jurisdictional act. The court in
Danielle W. affirmed the juvenile court order, holding that the court did not improperly
delegate judicial power to the children or the department. The children were only
authorized to express their desires regarding visitation and the department was authorized
to determine the specifics of how visitation would take place. (Id. at p. 1237.)
In concluding the visitation order in Danielle W. was not an improper delegation
of control over visitation, the court stated: “[T]he visitation order does not represent an
improper delegation of judicial power. First, there is no delegation of judicial power to
the children even though the order states in part that visitation is at the discretion of the
42
minors. In the context of this case, this means the children should not be forced to visit
with their mother against their will and in no way suggests that the minors are authorized
to do more than express their desires in this regard. Second, the order simply authorizes
the Department to administer the details of visitation, as specified by the court. Although
the order grants the Department some discretion to determine whether a specific proposed
visit would be in the best interests of the child, the dominant factor in the exercise of that
discretion is the desire of the child to visit the mother. [¶] . . . [¶] We point out,
however, that a visitation order granting the Department complete and total discretion to
determine whether or not visitation occurs would be invalid. . . . The juvenile court must
first determine whether or not visitation should occur, as was done here, and then provide
the Department with guidelines as to the prerequisites of visitation or any limitations or
required circumstances.” (Danielle W., supra, 207 Cal.App.3d at p. 1237.)
Here, the court did not improperly delegate to O.A. complete and total discretion
to determine whether or not visitation occurred. The court encouraged O.A. to interact
with mother and provided guidelines to be followed by CFS when determining whether
to allow mother to visit or contact O.A. As in Danielle W., the court indicated that CFS
was not to force O.A. to visit or have contact with mother if she did not wish to do so.
Mother has not demonstrated an improper delegation of the court’s authority.
In Danielle W., the court stated that, “In considering the best interests of the child,
while still recognizing parental visitation rights, the juvenile court did in fact order
visitation, under the one circumstance that would offer the best possibility that such
visitation would be beneficial — when the child desired such contact.” (Danielle W.,
43
supra, 207 Cal.App.3d at pp. 1238-1239.) The Danielle W. court noted that the order
provided protection of the minor’s psychological well-being. (Id. at p. 1239.) Likewise,
here, the court indicated it was encouraging O.A. to interact with mother and would allow
visitation if O.A. agreed to it but did not authorize forced visitation of any kind. As in
Danielle W., the juvenile court in the instant case did not improperly delegate its
visitation authority to O.A. The court merely directed CFS not to force O.A. to visit
mother or have contact with her if O.A. was opposed to it.
Mother argues that during the February 2014 PPR hearing, the juvenile court
improperly prohibited, not only personal visitation, but also telephone and written
contact. This is not correct. The court did not prohibit telephone and written contact.
The court previously authorized phone and letter contact and, at the February 2014 PPR
hearing continued the order. At the February 2014 PPR hearing, the court indicated that,
since O.A. had stated she did not want to participate in phone or letter contact with
mother, CFS should not force O.A. to participate in telephone and written contact with
mother.
Mother further argues that under section 366.26, subdivision (c)(4)(C), the
juvenile court’s denial of visitation must be reversed because the juvenile court did not
make a finding of detriment. Section 366.26, subdivision (c)(4)(C) states that “[t]he court
shall also make an order for visitation with the parents or guardians unless the court finds
by a preponderance of the evidence that the visitation would be detrimental to the
physical or emotional well-being of the child.” This objection has already been
addressed and rejected in one of mother’s previous appeals in this matter (case No.
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202585), in which the Second District Court of Appeal stated: “Moreover, visitation is
not an essential part of a case when the parent does not have reunification services. (In re
J.N. (2006) 138 Cal.App.4th 450, 458-459.) Section 361.5, subdivision (f), gives the
dependency court discretion as to whether visitation will be ordered when reunification
services are not granted because of, among things, a violent felony conviction. The
exception to such exercise of discretion is that visitation is not allowed if it would be
detrimental to the minor. (In re J.N., supra, 138 Cal.App.4th at p. 458.) Mother
misreads section 361.5, subdivision (f), when she asserts that ‘[v]isitation may only be
denied upon a finding that visitation would be detrimental to the child.’ That is not what
the statute says, and Mother’s citation to In re J.N. to support her misreading of the
statute also misreads what the In re J.N. court said about those provisions. (In re J.N., at
p. 458.)” (In re O.A., 2008 Cal.App.Unpub. LEXIS 4096, 31-32 (Cal.App.2d Dist.,
2008).)
Furthermore, the record is replete with evidence supporting a finding that forcing
O.A. to participate in visitation, whether it be personal visitation or contact by telephone
or letter, would be detrimental to O.A. Her therapists, physicians, and social worker’s
opinions had indicated that forcing visitation would be detrimental to O.A. This was
sufficient to support the juvenile court’s visitation order, in which the court directed CFS
not to force O.A. to participate in visitation if she objected to it.
45
IX
PLACEMENT
Mother contends there was insufficient evidence to support the juvenile court’s
finding at the February 28, 2014 PPR hearing that there was no adult available to become
O.A.’s guardian. Mother argues that the juvenile court should have found that F.S. was
qualified and available to become O.A.’s guardian.
O.A.’s permanent plan at the time of the hearing was a PPLA. Under section
366.3, the juvenile court was required to determine “[t]he continuing appropriateness and
extent of compliance with the permanent plan for the child, including . . . efforts to
identify a prospective adoptive parent or legal guardian . . . .” (§ 366.3, subd. (e)(3).)
Mother maintains that the juvenile court erred in continuing to refuse to acknowledge that
F.S. qualified as a prospective legal guardian. F.S. was seeking placement of O.A. and
such placement could entail a more permanent plan of guardianship.
Mother raised essentially these same arguments in her appeal to the juvenile
court’s June 11, 2013 order denying assessment of F.S. for placement (case No. 59174).
As discussed in section V of this opinion, mother argued F.S. qualified as a NREFM and
placing O.A. with her was in O.A.’s best interests. In section V, we conclude the juvenile
court reasonably concluded placement with F.S. was not in O.A.’s best interest and
placing O.A. with F.S. did not override O.A.’s interest in continuing in a stable
nonrelative placement.
For the same reasons mentioned in section V, we reject mother’s objection to the
February 28, 2014 finding there was no adult available to become O.A.’s guardian. The
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juvenile court reasonably found, based on substantial evidence, as discussed in section V
of this opinion, that F.S. did not qualify as a suitable guardian for O.A. O.A. did not have
favorable memories of living with F.S. when O.A. was five or six years old and did not
want to live with her. Furthermore, O.A. was happy in her current PPLA placement and
wanted to remain there. There was more than ample evidence to support the juvenile
court’s rejection of F.S. as an available, qualified guardian for O.A.
X
2014 PSYCHOTROPIC MEDICATION ORDER
Mother raises the same objections to the juvenile court order allowing
administration of psychotropic drugs to O.A., as raised in her previous appeals, including
the two appeals consolidated with mother’s appeal of the February 28, 2014 order.
Mother states in her appellate opening brief in case No. E060958 that, “[a]s [mother]
explained in her earlier appeals, the evidence provided the juvenile court regarding the
propriety of the administration of psychotropic drugs was woefully inadequate.” Mother
therefore concludes the February 28, 2014 order allowing provision of psychotropic
drugs to O.A. must be reversed. Mother argues the February 26, 2014 medication
application did not properly contain the required information regarding potential side
effects of the medication on a child of O.A.’s age.
The February 26, 2014 application requested administration of Zoloft for
depression and Benadryl for insomnia. Attached to the application were two medication
fact sheets, one for each medication, which discussed common side effects. There was
also attached to the application a consulting physician’s statement indicating the
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proposed medication was “generally appropriate.” Mother provided the court with
medical information that the requested medication increased suicidal thoughts, and this
symptom is more common in children. On February 28, 2014, the court granted CFS’s
psychotropic medication application. Mother argues that because the medication request
did not address all potential side effects, such as increased suicidal thoughts, the court did
not have sufficient evidence upon which to determine whether the medication was
appropriate for O.A. In addition, mother argues, as she has in previous appeals, that there
was no evidence Zoloft is effective when given to a child and the court failed to consider
alternatives to medication, such as therapy. Mother further asserts that CFS’s medication
application was untimely. CFS claimed in its February 26, 2014 application that the
application was an emergency application because the earlier medication order was about
to expire. Mother argues there was no emergency. CFS merely failed to timely file an
application, by waiting until shortly before expiration of the earlier order, and then
rushing approval of the new application, thereby impeding proper consideration of the
application.
For the same reasons discussed in mother’s previous appeals and in section III of
this opinion regarding mother’s appeal of the May 17 and October 13, 2013 orders, we
reject mother’s challenge to the juvenile court order approving administering
psychotropic medication (Zoloft and Benadryl).
We further conclude there was substantial evidence supporting the juvenile court’s
order authorizing administration of psychotropic medication to O.A. Such evidence
included the medication application statement of prescribing physician, Dr. Cho, that
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stopping the “medications may mean decompensation leading to psychiatric
hospitalization and jeopardize placement.” According to the application, O.A. has been
taking Zoloft for depression since May 2013, and Benadryl, as needed for insomnia, since
September 2013, with no known medical problems. O.A., who is 14 years old, consented
to taking the medications and is reportedly doing well. She is free from hallucinations
and therefore is no longer taking Risperdal. Dr. Cho has been monitoring O.A. monthly
and recommended the medication in February 2014. The medication application was
approved by court consultant, psychiatrist Dr. Galang-Feather. Mother has not
established it is in O.A.’s best interests to stop the medication or that the February 28,
2014 medication order was improper, inappropriate or an abuse of discretion.
XI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.
49