In re I.R. CA1/2 ( 2013 )

Filed 3/6/13 In re I.R. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re I.R., a Person Coming Under the
Juvenile Court Law.
G.R.,
Petitioner,
v.
A137151
THE SUPERIOR COURT OF
HUMBOLDT COUNTY, (Humboldt County
Respondent; Super. Ct. No. JV110144)
HUMBOLDT COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES
et al.,
Real Parties in Interest.
I. INTRODUCTION
Petitioner G.R., the mother of eight-year-old I.R., has filed this writ petition
seeking relief from the juvenile court’s order terminating family reunification services
and setting a hearing pursuant to Welfare and Institutions Code section 366.26.1 Mother
contends that she substantially complied with her case plan objectives and should have
been granted additional reunification services. We conclude the contentions have no
merit, deny the petition on the merits, and vacate the stay of the section 366.26 hearing.
1
All further unspecified statutory references are to the Welfare and Institutions
Code.
1
II. FACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2011, the Humboldt County Department of Health and Human
Services (Department) filed a petition alleging that the minor came within the provisions
of section 300, subdivision (b). Specifically, the petition alleged that the minor had been
with mother in mother’s car for at least 24 hours and had not eaten during that time.
Mother admitted to smoking heroin and driving under the influence of heroin while the
minor was in the car with her and to “conducting illicit drug activities” with the minor
present. Mother was arrested for felony child endangerment.
The detention report prepared by social worker Winnie Williams indicated that the
Eureka Police Department took the minor into protective custody around 5:00 a.m. on
September 25, 2011, a Sunday. The minor was hungry and thirsty but had no medical
issues that required a trip to the hospital. She was also observed to look “filthy” and
“was holding a dirty blanket.” The minor reported that she had been in the car all the
previous day and that mother had been driving around all night. Mother initially reported
that she had been kidnapped and raped in front of the minor. Mother admitted to
smoking heroin in front of the minor and driving under the influence with the minor in
the car. Mother’s boyfriend, David C., contacted the police when he received troubling
text messages from mother on Friday night, September 23. David C. was worried
because of mother’s history of drug use.
The detention report also stated that, since the birth of I.R. in 2004, the
Department has investigated five referrals involving mother. In 2005, the Department
substantiated an allegation against mother for general neglect of I.R. and a sibling.
Mother refused the offer of voluntary maintenance services.
The court held a contested detention hearing on September 30, 2011. Mother
testified at the detention hearing. The court detained the minor and ordered supervised
visitation for mother.
At the jurisdiction hearing on October 11, 2011, mother objected to jurisdiction
but submitted the matter without a contested hearing. The court sustained the petition
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and adopted the findings and orders recommended by the Department. The matter was
set for disposition on November 8, 2011.
In a report prepared for the disposition hearing, social worker Williams stated that
police had been unable to verify mother’s report that she had been sexually assaulted,
held against her will, and forced to use heroin the weekend I.R. was taken into protective
custody. Williams indicated that it was unknown whether mother’s issues were
predominantly mental health or substance abuse. Mother reported a history of substance
abuse but claimed to have been clean for over four years except for using medical
marijuana.
David C. told the Department that mother had a diagnosis of bi-polar disorder and
was currently taking 11 prescription medications, including antidepressants and pain
medication. He also reported that she used medical marijuana pursuant to a 215 card.
The Department recommended a case plan for mother that included a mental
health evaluation, a medication evaluation, counseling to address the incident that led to
the removal of I.R., and participation in a domestic violence support group. The case
plan also required mother to stay free from illegal drugs and show her ability to live free
from drug dependency, follow all court orders and conditions of probation; provide a safe
home for I.R., demonstrate her ability to appropriately parent I.R. and keep her away
from criminal activity, and remain involved in the county AOD (Alcohol and Other
Drugs) program. The Department also recommended that mother have four hours of
supervised visitation per week.
At the disposition hearing on November 8, 2011, mother indicated that she had no
objection to the case plan and submitted on the report. The court declared I.R. a
dependent, authorized her placement in foster care, and ordered family reunification
services for mother.
Mother participated in a court-ordered psychological evaluation with Dr. Andrew
Renouf on November 25, 2011. Dr. Renouf prepared a Forensic Mental Health
Assessment for the court summarizing his conclusions. Dr. Renouf noted that mother
was being treated for chronic back pain, fibromyalgia, and headaches by Daisy Eng,
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M.D. Dr. Eng was aware that mother had a diagnosis of schizoaffective disorder, but she
was not treating that condition. Dr. Eng was also aware of mother’s history of heroin
addiction, and stated that her longer-term goal was to wean mother off of as many of the
opioid pain medications as possible.
Dr. Renouf stated that, from a functional standpoint, mother exhibited significant
problems with her reality testing and was prone to misperceiving and misinterpreting
people’s behaviors, events, and situations. He opined that her level of impairment was at
least partly the result of her prescribed medications, which included high levels of opiates
and hypnotics as well as a benzodiazepine; all three classes of medications can cause
psychotic-like symptoms and all have a high potential for abuse. He recommended that
mother undergo an independent medication review.
Dr. Renouf also recommended that mother continue to participate in the AOD day
treatment program and Narcotics Anonymous, but that the scope of treatment through
AOD be broadened to include her use of prescription medications. He further
recommended that she receive treatment for post-traumatic stress disorder, opining that it
was highly likely that trauma was implicated to some degree in her impaired reality-
testing.
On May 30, 2012, the Department filed a six-month status review report prepared
by social worker Tara Riddle. Riddle informed the court that, since November 1, 2011,
mother had missed 21 visits due to sickness, other appointments, scabies, and
hospitalization, and that she had missed 12 of 30 visits offered between January 1 and
May 2, 2012. Most of these visits had been canceled because mother was tardy. On
March 26, 2012, the Department enacted a policy that mother arrive for a visit before I.R.
would be picked up.
Mother had separated from David C. and was now living at the Blue Heron motel
with a new partner, S.K. On November 28, 2011, Mother attempted to bring S.K., whom
she described to I.R. as “her new father,” to a visit without Department approval. When
S.K. was not allowed to meet I.R., the incident escalated, with mother screaming and
grasping I.R.
4
To obtain approval to attend visits, S.K. agreed to Livescan (a background check).
Prior to the investigation, he was “adamant that he had no record of concern.” However,
the background check revealed that he had been convicted of involuntary manslaughter in
1992 for the death of his own child. He also had two other children who had permanency
planning cases. As of the date of the report, S.K. had not met I.R.
In the report, Riddle also stated that mother had discontinued her AOD groups in
early December 2011. Mother reported that clinician Sheldon Chase gave her permission
not to attend in order to focus on her case plan, but Chase reported that he made no such
plan with mother. Since November 1, 2011, mother had twice failed to drug test on the
day requested, ignored voicemails asking her to test, and refused entirely to test on
January 5 and March 19, 2012, stating that it was against her religion to test while
menstruating. Mother stated that she would provide documentation that this was a
religious matter, but the Department had yet to receive it.
Riddle stated that mother’s behavior and appearance suggested that she was not
maintaining sobriety. Riddle noted that, in January, mother’s face was covered with
sores. Mother had been arrested twice since March for public intoxication and loitering
with intent to prostitute, and the police reports noted marks and bruises on her arms
indicative of injection of narcotics.
Riddle noted that both Dr. Renouf and the Department had recommended that
mother have her medications reevaluated to provide more appropriate and effective pain
management. Mother said she would attend a pain management clinic in the Bay Area
for the re-evaluation, and Riddle offered to help with making the appointment. The
social worker noted that it was strongly recommended that this take place in the next six
months of services. On January 13, 2012, mother informed Riddle that she had
independently stopped taking some of her medications. On April 18, 2012, she told
Riddle that she was titrating off her psychotropic medications and taking herbal
supplements instead. Riddle noted that, during the reporting period, mother had
manifested bizarre thinking at times.
5
The social worker reported that mother believes she is being targeted unfairly and
being discriminated against by the child welfare system and the dependency court. This
led to multiple explosive verbal attacks on the social worker. Despite these outbursts,
according to Riddle, mother had maintained good contact with the Department. The
Department assigned mother a Parent Partner to assist her in working through the system.
The Department also made efforts to accommodate mother’s requests by placing I.R.
with a foster mother of color and in a foster family that would be supportive of mother’s
Rastafarian beliefs.
The social worker recommended that mother receive six more months of services,
but also recommended inpatient substance abuse treatment.
In a report prepared for the six-month review, CASA wrote that I.R. was thriving
in her new foster placement and that her behavior had improved. However, when mother
missed visits, I.R. became stressed and acted out inappropriately. CASA recommended
that I.R. be placed in a concurrent home at the end of the school year and agreed with the
Department’s recommendation that mother receive six more months of services.
In a response to the six-month status review report, mother objected to the
Department’s portrayal of her as not being in compliance with her case plan and to the
recommendation for inpatient substance abuse treatment. She stated that she had recently
obtained a written AOD assessment and that AOD referred her to outpatient treatment.
Mother stated that she had an appointment to attend a scheduled treatment planning
session on June 4, 2012. She acknowledged that she stopped attending AOD group
sessions, explaining that they were not helpful. Instead, she had been attending Narcotics
Anonymous meetings, and she attached her attendance records. Mother stated that she
has remained free of illegal drugs. Mother also explained that Dr. Eng conducts routine
medication evaluations and drug testing, and would not continue to prescribe medications
to her if she had tested positive for illegal drugs. She informed the court that she
obtained a restraining order against ex-boyfriend David C., and that she attends domestic
violence support services as needed. She requested a supplemental mental health
assessment in the next six months because she has made substantial progress in her life
6
since the evaluation with Dr. Renouf in November 2011. She assured the court that she
planned to attend all of her future visits with I.R.
At the contested six-month review hearing, the court modified the case plan to
allow mother to undergo intensive outpatient treatment for substance abuse. The court
set an interim status review for August 28, 2012.
At the August 28, 2012, interim status review hearing, mother did not appear but
through her attorney requested adjustments to her case plan to accommodate her religious
beliefs. The court instructed mother’s counsel to provide the Department with the name
of a religious leader who could verify the religious practices and provide the Department
with options.
On October 9, 2012, the court set the matter for a contested 12-month review. The
Department recommended terminating reunification services and setting the matter for a
section 366.26 hearing. Mother contested this recommendation and objected to a request
from minor’s counsel’s to discontinue visitation. Following argument, the court
suspended visitation pending the hearing.2
Social worker Nathan Ask submitted a status report for the 12-month review
hearing that summarized mother’s participation in services during the review period. Ask
stated that mother had not completed any of the objectives set forth in her case plan.
Although mother continued to insist that she had been drug-free since September 2011,
observations by former social worker Riddle and review of mother’s medical records
suggested that mother continued to struggle with opiate addiction and abuse. Riddle
discussed her concerns with mother after observing what appeared to be a large injection
site on mother’s left arm. Mother stated that it was a bedbug bite. On July 24, 2012, Dr.
Eng discontinued prescribed narcotics; she found a “high risk of abuse” after several
discordant drug tests.
2
Evidence regarding problems with visitation is described post in the summary of
the social worker’s 12-month status review report.
7
Mother had not completed or successfully participated in a substance abuse
treatment program. In May 2012, she was assessed by the county AOD program and
referred to intensive outpatient treatment, which consisted of two groups per week for 13
weeks. As of September 7, 2012, mother had only attended seven groups. Mother
reported to her AOD counselor her abrupt discontinuation of opiate medications and her
plan to use marijuana for pain. This change required the counselor to establish a new
treatment program. Mother missed her September 6, 2012, appointment to sign the new
treatment plan. Mother rescheduled the appointment for September 13, but also missed
that appointment. Mother was discharged from the AOD program on September 18,
2012.
Mother did not engage in any formal mental health treatment during the review
period. Mother insisted that she did not need any formal treatment or intervention, and
claimed that her participation in church activities three times per week was her form of
therapy. The social worker contacted the pastor at mother’s church, who stated that
mother’s participation in church activities was roughly 50 percent less than she reported
and that her engagement with the congregation was casual and did not include a
counseling relationship with any church official.
The report stated that mother continued to reside at the Blue Heron motel in
Eureka.
Ask reported that visitation, which continued to be ordered at a minimum of four
hours of supervised visitation per week, had been inconsistent in frequency and duration
during the review period. The majority of visits were either canceled by mother,
shortened by mother’s tardiness, or limited in quality due to mother’s nodding off or
falling asleep. When visits did take place and mother was fully present, however, the
interaction between mother and I.R. was loving and consistent with a warm parent-child
relationship.
Ask wrote that another barrier to successful visits had recently arisen, specifically,
mother’s interactions with staff supervising the visits had become hostile and
inappropriate. Mother was 35 minutes late for visits on September 11 and 13, 2012, after
8
having canceled visits on September 4 and 6. On September 18, 2012, staff monitoring
the visits requested that mother take a moment to meet with them regarding visitation
guidelines. Mother refused and became threatening and hostile. Social worker Abbie
Bremers reported that mother was yelling threats at the visitation staff while I.R. was
present. Mother then canceled her visit on September 20. As previously noted, on
October 9, after hearing argument, the court suspended visitation between I.R. and
mother pending the 12-month review hearing.
Visits between I.R. and her former guardian Jamie M. occurred regularly
throughout the summer. Since the start of the school year, I.R. had spent every other
weekend with Jamie M. Jamie M. expressed interest in adopting I.R. if reunification
were to fail. The Department was working to facilitate a gradual transition of placement
to minimize disruptions to I.R.’s well-being.
I.R. experienced serious behavioral problems during the review period, including
multiple suspensions from school and the Boys and Girls Club. Her foster home
placement was extremely unstable due to her behavior. On October 26, 2012, minor’s
counsel filed a section 388 petition seeking to limit mother’s educational rights and
requesting the appointment of Jamie M. as I.R.’s educational surrogate. Noting that the
current recommendation was to terminate services and plan for permanency, counsel
explained that I.R.’s current placement was not concurrent and was precarious; the
concurrent placement with Jamie M. would require I.R. to change schools; mother
appeared to be either unavailable or unwilling to allow the change; the changes requested
in the petition would allow I.R. to be placed with Jamie M., go to her new school, and
begin the transition to permanency with Jamie M.
On November 7, 2012, the court held the contested 12-month review hearing and a
hearing on I.R.’s section 388 petition.
Mother testified that she had done everything required by her case plan, and more.
She had not used illegal drugs since September 25, 2011, and maintained her sobriety
through support from friends and 12-step programs, AOD, prayer, and meditation. When
asked about her progress in complying with court-ordered substance abuse treatment, she
9
testified that she was in the process of completing the program but had not done so
because her social worker was going to recommend that I.R. be placed for adoption: “I
just felt what was the point of completing the program if—” She stopped getting high in
order to set a good example for her children and other young women. She testified that
she was using marijuana via a 215 card once a month, and that heavy use would be once
a week.
Mother testified that she and her doctor agreed that she would discontinue all
psychotropic medications so as not to be dependent on pharmaceutical medication for her
mental well-being. She discontinued these medications in January of 2012. As a result,
she has clearer thinking.
Mother testified that she was bullied by visitation staff before her visits were
suspended. She opposed the limitation of her educational rights to I.R. and felt she was
capable of performing them.
Mother stated that, of all the missed visits with I.R. during the last six months, she
was at fault one or two times. She did fall asleep during the last 15 minutes of one visit
because she felt so comfortable watching a movie with I.R. like they used to when she
was at home. Mother said I.R. was always very excited to see her at visits and sad to see
her go. Mother also testified about one incident when visitation staff interrupted her time
with I.R. to discuss the case, and how upsetting this was to mother.
Regarding the psychological treatment component of her case plan, mother
testified that once she was off all of her psychotropic medications she no longer needed
psychological evaluation or treatment. She felt that during the last six months her mental
health had improved.
Mother stated that she complied with the domestic violence component of her case
plan by obtaining a restraining order against her former partner David C. and attended
some classes and groups at the Humboldt Domestic Violence Services for a few months.
She still goes occasionally when she has time. There is no domestic violence in her
current relationship.
10
Mother testified that there was no criminal activity occurring in her home.
Regarding an arrest for public intoxication, she said she was not under the influence and
no charges were filed. She asked the officer to draw blood or give her a sobriety test.
Mother said she complied with the medication evaluation requirement by having
an evaluation every month until her medications were discontinued.
She also testified that she complied with the requirement to provide suitable
housing. She acknowledged that her current housing situation at the motel was not ideal,
but said that if I.R. were returned to her, I.R. would sleep in the bed with her. Mother
said she co-slept with all of her children. She went on to say that she intended to move
into an apartment and that I.R. would have her own room. She was hoping to move
within a month or two, once the current occupants moved out. If it took longer than that,
she would make other arrangements. She testified that her current partner, now her
fiancé, is loving, kind, gentle, and patient, and has a great relationship with I.R. despite
only having met her a couple of times.
Mother said she had done everything the case plan required. She told the court she
felt that nobody else was doing anything they were supposed to do to help her reunify
with her daughter. Mother wanted the court to know that her life was very different from
what it was when I.R. was first removed. She had done everything asked of her and had
repeatedly asked for more visits, more time, and more help from the Department, but was
“constantly denied everything.” Her visits were repeatedly cancelled, and then that fact
was held against her.
On November 8, 2012, the court issued its ruling from the bench. The court stated
that it had re-read the entire file and concluded that the statements and information
contained in the report were more credible than the evidence presented at the hearing.
The court found that mother had not regularly and consistently contacted and visited I.R.,
that she had not made significant progress in resolving the problems that led to I.R.’s
removal, and that she had not demonstrated the capacity or ability to complete her case
plan objectives or to provide for I.R.’s protection and physical and emotional well-being.
Consequently, the court terminated reunification services and set the matter for a section
11
366.26 hearing to determine a permanent plan for I.R. The court also granted minor’s
counsel’s section 388 petition. Visitation was set at one time every other week for two
hours for two months, supervised, on condition that mother meets with the Department
regarding her conduct and behavior so that visitation is positive for I.R.
Mother filed a notice of intent to file a writ petition.
III. DISCUSSION
At the 12-month permanency hearing, “the court shall order the return of the child
to the physical custody of his or her parent . . . unless the court finds, by a preponderance
of the evidence, that the return of the child to his or her parent . . . would create a
substantial risk of detriment to the safety, protection, or physical or emotional well-being
of the child.” The social worker has the burden to establish such detriment. (Welf. &
Inst. Code, § 366.21, subd. (f).) The juvenile court made this finding when it issued its
ruling.
Section 366.21, subdivision (g)(1), allows the juvenile court to extend
reunification services at the 12-month review hearing if it finds that there is a substantial
probability the child can be returned to parental custody within 18 months of the date the
child was removed from parental custody. In order to find a substantial probability of
return, the court must make three findings set forth in the statute as follows: (1) the
parent consistently and regularly contacted and visited the child; (2) the parent made
significant progress in resolving the problems that led to the child’s removal; and (3) the
parent demonstrated the capacity and the ability to complete the treatment plan objectives
and provide for the child’s safety, protection, and physical and emotional well-being.
(§ 366.21, subd. (g)(1)(A)-(C).)
Here, mother argues that she met each of these requirements and substantially
complied with each component of her case plan and that she was, therefore, entitled to
nearly six more months of reunification services. In ordering the termination of
reunification services, the court made the opposite findings, i.e., that mother did not
consistently and regularly contact and visit I.R., did not make significant progress in
resolving the problems that led it I.R.’s removal, and had not demonstrated the capacity
12
and ability to complete the treatment plan objectives or provide for I.R.’s safety,
protection, and physical and emotional well-being.
“If there is substantial evidence to support the findings of the juvenile court, we
uphold those findings. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not
evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary
conflicts. Rather, we draw all reasonable inferences in support of the findings, consider
the record most favorably to the juvenile court’s order, and affirm the order if supported
by substantial evidence even if other evidence supports a contrary conclusion. (In re
Autumn H. [(1994)] 27 Cal.App.4th [567,] 576.) The appellant has the burden of
showing the finding or order is not supported by substantial evidence. (In re Geoffrey G.
(1979) 98 Cal.App.3d 412, 420.)” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) For
evidence to be considered “substantial,” it must be reasonable, credible, and of solid
value. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) “ ‘The ultimate test is
whether it is reasonable for a trier of fact to make the ruling in question in light of the
whole record.’ [Citation.]” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.)
Mother contends that she consistently and regularly visited I.R. She cites her
testimony at the 12-month hearing that she was only responsible for one or two missed
visits and that all the other missed visits were due to situations out of her control, and
points out that the Department did not call any witnesses to refute this testimony. She
dismisses the suspension of visitation near the end of the review period as due to her
conduct with adults, arguing that it was not related to her loving relationship with her
daughter. There are two problems with this argument. First, it ignores our standard of
review and the burden of a petitioner in establishing error. Second, it ignores the court’s
express finding that the statements and information contained in the Department’s report
were more credible than the testimony presented at the hearing.
Contrary to mother’s position, there was ample evidence that she did not contact
and visit her daughter consistently and regularly. The report authored by the social
worker stated that mother canceled a number of visits and that others were limited by her
tardiness. When visits took place, sometimes mother appeared to be nodding off or
13
sleeping. Her hostile and threatening behavior with visitation supervisors resulted in the
suspension of visits, further impacting the consistency and regularity of her contact with
I.R.
Next, mother acknowledges that her case plan was designed to help her resolve the
problems that led to I.R.’s removal and included services to address substance abuse,
mental health, medication evaluation, and domestic violence. She again cites her
testimony at the hearing as evidence that she has made significant progress on her case
plan and in addressing the problems that led to the court’s intervention.
However, mother did not complete or successfully participate in a court-ordered
substance-abuse treatment program. She continued to deny any drug abuse or addiction
issues despite the previous social worker’s concerns that mother showed signs of
continuing drug abuse; an arrest for public intoxication in March 2012; and her
physician’s discontinuing prescription narcotics in July 2012 because of drug tests that
were inconsistent with prescribed medications. Mother also had not engaged with court-
ordered mental health treatment and misrepresented the frequency and nature of her
contacts with her church to her social worker.
Mother’s profound lack of progress in overcoming the conditions that led to I.R.’s
removal also supports the court’s finding that mother did not demonstrate the capacity
and the ability to complete her case plan or safely parent her daughter. In addition,
mother lacked adequate housing for I.R. She proposed to share a bed with her daughter
in a motel room that she was also sharing with S.K., her fiancé.3
Given mother’s continued denial of any substance abuse or mental health issues,
combined with her insistence on addressing her own perceived needs in her own
preferred ways, the court could reasonably conclude it was not probable that I.R. would
be returned to mother if reunification services were extended. On this record, the court’s
findings that mother failed to consistently and regularly visit I.R., failed to make
significant progress on the problems that led to I.R.’s removal, and did not demonstrate
3
S.K. testified that there was no room for I.R. in the motel room.
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the capacity and ability to complete her treatment plan or provide for I.R.’s care and well-
being were well supported by substantial evidence.
IV. DISPOSITION
The petition is denied on the merits. (Cal. Rules of Court, rule 8.452(h)(1).) This
decision is final as to this court immediately. (Id., rule 8.490(b)(1).) This court’s stay of
the section 366.26 hearing shall be dissolved on the filing of this opinion.
_________________________
Haerle, Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
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