S.S. v. Superior Court CA2/5 ( 2022 )

Filed 7/29/22 S.S. v. Superior Court CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
S.S., B317892
Petitioner, (Los Angeles County
Super. Ct. No.
v. 20CCJP01104A)
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for extraordinary
writ. Lisa A. Brackelmanns, Judge Pro Tempore. Petition
denied.
Nicole J. Johnson and Xavier Rosas for Petitioner.
No appearance for Respondent.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Jacklyn K. Louie, Principal
Deputy County Counsel, for Real Party in Interest.
Stanley Wu for Minor J.S.
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The juvenile court assumed dependency jurisdiction over
then-four-month-old J.S. and removed him from the custody of
his mother S.S. (Mother) based on the court’s finding that Mother
suffered from mental and emotional problems that inhibited her
ability to regularly care for her very young son. The court’s order
for reunification services required Mother to undergo a
psychological evaluation and participate in individual counseling.
At the 12-month review hearing, the juvenile court terminated
Mother’s family reunification services and set a permanency
planning hearing. In this extraordinary writ proceeding
challenging the setting of that hearing, we consider whether
substantial evidence supports the juvenile court’s finding that the
Los Angeles County Department of Children and Family Services
(the Department) provided Mother with reasonable reunification
services before those services were ordered terminated.
I. BACKGROUND
A. The Department Investigates J.S.’s Welfare
In February 2020, the Department received a report about
concerning behavior by Mother at the hospital where she had just
given birth to J.S. According to the reporting party, Mother had
been aggressive and threatening towards the nursing staff, tried
to leave with J.S. against medical advice, and refused a toxicology
test. A hospital psychiatrist “[did] not have enough to place
[Mother] on a psychiatric hold,” but believed Mother was
schizophrenic.
A Department social worker visited the hospital. Mother
was interfering with J.S.’s newborn screenings, “refusing to allow
the examinations, yelling, cursing, and insulting medical staff.”
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The social worker attempted to calm Mother down and explained
the Department needed to know she was prepared to handle the
responsibilities of a newborn. Mother shouted “leave me alone,”
and the social worker left the room. A hospital social worker
then entered Mother’s room, but Mother told her to “get out.” A
psychiatrist re-evaluated Mother and determined that she
“appeared to exhibit cluster traits, low distress tolerance, and
possibly borderline personality disorder.”
Later, Mother yelled at a nurse who was performing a
newborn screening test and told her to leave. The hospital
psychiatrist was called in again. He said he would need more
time to determine Mother’s capacity to care for J.S. but there was
a “risk factor” due to Mother’s “‘low distress tolerance and anger
aggression.’” A doctor opined Mother’s actions were interfering
with the standard care of J.S. The Department obtained an order
removing J.S. from Mother’s custody.
In the Department’s investigation that ensued, a social
worker spoke to Mother. She said that part of her income comes
from “Social Security Insurance” and that “her disability is
Anxiety and Depression during her pregnancy.” Mother said she
had been following a mental health professional’s
recommendation “when she was 16, but not now.” Mother
claimed she no longer needed counseling.
Treatment notes from Mother’s hospital stay when giving
birth to J.S. mention a history of schizophrenia, citing
“[c]ollateral history” obtained from Mother’s shelter. The notes
add that Mother “denies this history when she is confronted.”
The notes also state that the schizophrenia is “apparently
untreated at this time.”
4
Department records indicated Mother had also been
admitted to a hospital for “drug induced [p]sychosis” less than
three years earlier, in May 2017. She was treated and
discharged after nearly a month. Less than a week after her
discharge, however, Mother was treated at a different hospital for
“suicidal thoughts and Bi Polar.” After that hospital stay,
Mother had a mental health assessment and an intake
appointment, but decided she no longer wanted mental health
services. The following week, Mother was admitted to another
treatment center and discharged with a prescription for
medication. Within a month, Mother “stated that she was feeling
fine and back to her old self and stopped taking the medication,”
but she said she would resume taking the medication if she began
“having bad thoughts.”
B. The Dependency Court Takes Jurisdiction Over J.S.
The Department filed a juvenile dependency petition
alleging Mother “has mental and emotional problems, including
cluster traits, low distress tolerance and possible borderline
personality disorder and a diagnosis of anxiety, depression and
schizophrenia, which renders the mother incapable of providing
regular care for the child. The mother failed to obtain
recommended mental health treatment. Such mental and
emotional problems on the part of the mother, endangers the
child’s physical health and safety and places the child at risk of
physical harm, damage, and danger.”
The court held a detention hearing in February 2020. The
court detained J.S. from Mother and released him into the
Department’s custody. Mother was permitted monitored
visitation.
5
In April 2020, Mother informed the Department she
completed a mental health evaluation and was prescribed three
medications for anxiety. She said she was told she was bipolar
and had postpartum psychosis. Mother said she took the
medication once and, after that, told the doctor she didn’t need
medication. Mother said she would be receiving individual
counseling. She denied being diagnosed with mental health
problems during her prior hospitalizations and claimed she had
been admitted because she was “homeless and doing substances.”
(She refused to say what substances she had been using at that
time.) With regard to her behavior at the hospital after giving
birth to J.S., Mother said she had been upset with her siblings for
not helping her when they were visiting and raised her “voice a
little bit” at a nurse.
In June 2020, the juvenile court sustained (with certain
amendments by interlineation) the aforementioned dependency
allegations and ordered monitored visitation for Mother. The
disposition hearing was scheduled to take place later.
In the interim before the disposition hearing, Mother told a
social worker not to call her anymore because she did not require
assistance and was “well aware” the social worker was not willing
to help her. When asked if she had been following up with her
psychiatrist and taking her medication, Mother responded, “‘It’s
none of your business if I am, plus I don’t need to take
medication. All I needed to do was take the assessment and I did
that, so there, I’m doing what I need to do.’”
Not long thereafter, Mother was involuntarily hospitalized
pursuant to Welfare and Institutions Code section 5150. The
involuntary hospitalization was triggered because Mother was
threatening other residents of the shelter where she lived and
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refused to leave the shelter. Mother was released from the
hospital the next day and allowed to return to the shelter. The
shelter manager reported that Mother had been “unstable the
entire week.”
There were also problems with Mother’s visitation. In July
2020, a visitation monitor terminated a visit when Mother
became “very loud, angry, and confrontational” after being
advised against overfeeding J.S. On another occasion, Mother
was shouting obscenities at a passerby during a visit with J.S. at
a park, yelling at the visitation monitors, and cursing at J.S.’s
foster mother. In August 2020, Mother told the Department she
was asked to leave her shelter after a fight with staff and her
roommate. Mother was in “good spirits” and in a “positive mood”
for two later visits, however, stating she was taking her
medication daily and was feeling better and less anxious.
Shortly before the disposition hearing, the Department
submitted a report to the juvenile court attaching a September
2020 progress letter from Dr. Robert Strong, who had been
having weekly teletherapy sessions with Mother since May.
According to the letter, “[Mother’s] treatment goal was related to
reducing panic attacks (that often look like angry outbursts to the
untrained eye) from multiple times/wk to less than weekly.
[Mother] worked . . . on learning and applying coping skills,
which she worked hard at to employ in the conflicts that would
emerge with women at [Mother’s shelter] that were reportedly
critical and aggressive. And when she was relocated to a calmer
shelter, her anxiety went down dramatically.” According to Dr.
Strong’s letter, “[Mother] has been working with a psychiatrist at
our clinic,” and she felt “the medication was helping her have
more even moods and clearer thinking.”
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At the disposition hearing held in October 2020, the court
declared J.S. a dependent of the court and ordered that he be
placed in foster care. The court also ordered family reunification
services for Mother, including parenting classes, transportation
and housing assistance, and mental health treatment—
specifically, an order for a psychiatric evaluation, a direction to
take all prescribed psychotropic medication, and a requirement to
participate in individual counseling.
C. Subsequent Developments, and the Six-Month Review
Hearing
A Department social worker called Mother in December
2020 to discuss visitation with J.S. and provide assistance with
transportation, housing, and funding for programs. Mother
refused assistance from the Department.
During a subsequent phone call with Mother, a social
worker heard Mother and J.S.’s alleged father arguing. The
Department later met with Mother and suggested enrolling in a
domestic violence class. The Department also informed mother it
could not provide financial assistance payments to her because
she was already receiving social security payments.
Dr. Strong (Mother’s therapist) authored another progress
letter regarding Mother in February 2021. Insofar as the letter
described Mother’s condition, it was identical to his prior letter
prepared in advance of the disposition hearing. This letter,
however, also included a jeremiad about social welfare systems
and their treatment of people of color: “From my observations
and from current sociological study, black mothers are subject to
negative attributions from social workers and medical
professionals, at a highly disproportionate rate. [¶] . . . [¶] I have
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watched [Mother] attempt everything asked of her with no
support or financial resources. She tried attending a certificate-
program at a local college and tried to take online parenting
classes, all while struggling with finances and transportation.
This young lady has a great amount of trauma that clouds her
mind regularly, and treatment by our racist healthcare system
has caused a great deal of it. She has already been robbed of the
irreplaceable first key year of bonding with her baby. [¶] . . . [¶]
I will advocate for her as much as I can against this implacably
biased system that traumatizes black families on a regular basis.
I was written up by my county clinic last year for complaining of
similar systemic biases, because I had offended some privileged,
Caucasian social worker. This was the same month I was shot
with rubber bullets for protecting a sister of color from the police
officers that were dragging her across the pavement and beating
her. The fear of institutions and uniforms has been beaten out of
me. So, professionalism be damned. Those in positions of power
who ignore and thereby perpetuate this sort of human suffering
by a racist and oppressive system, those are the ones who should
be sleepless with fear and remorse, for the spiritual karma that
will inevitably come to them in this world or the next.”
The Department submitted the letter to the juvenile court
as part of a status update report in advance of the six-month
review hearing. The Department’s report opined Dr. Strong’s
letter was “inappropriate” and demonstrated Dr. Strong “wants
to serve more as an advocate . . . than her therapist.” The
Department’s report stated the Department would search for a
more appropriate therapist in the months to follow.
By March of 2021, Mother told a Department social worker
she was taking new medication prescribed by her psychiatrist Dr.
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William Kaz (the psychiatrist working at the same clinic as Dr.
Strong) and was experiencing “problems” with the new
medication. Mother provided a letter from her residential case
manager explaining Mother had been transported to the hospital
after having an adverse reaction to the new medication. The
social worker advised Mother to contact her doctor to have her
medication reevaluated.
At the six-month review hearing, held in April 2021, the
juvenile court found the Department had provided Mother with
reasonable services. The court further found that Mother had
made partial progress with her case plan and ordered
reunification services to continue.
D. The Twelve-Month Review Hearing and Termination
of Reunification Services
Visitation problems continued after the six-month review
hearing. At one visit in May 2021, J.S.’s foster mother reported
Mother said she did not take her medication. A June 2021 visit
had ended with the police being called when Mother “was acting
out of control,” and “cussing and screaming” in front of J.S. As a
result, a Department social worker, J.S.’s foster mother, and the
foster family social worker met with Mother and she was agitated
and used profanity throughout the meeting. Mother was asked if
she was keeping Dr. Strong apprised of any mental health issues
and she said that Dr. Strong was not helping her. The
Department social worker said he would talk to Dr. Strong about
Mother’s concerns.
Dr. Strong thereafter sent an e-mail to a Department social
worker stating Mother “has fulfilled all of her other
requirements, finished anger management and parenting classes,
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participated in individual therapy[.] What’s the latest from your
end? What’s the hold up for reunification?” The social worker
informed Dr. Strong of the recent meeting in which Mother used
profanity and “refused to listen to reason.”
Dr. Strong provided a final progress letter in September
2021. The letter contained identical statements as the previous
letters about Mother’s treatment goals, her feelings about the
effect of her medication, and life updates. Dr. Strong also
expressed skepticism about the justification for J.S.’s removal:
“It has also been confirmed recently, that the hospital used a
false diagnosis to justify snatching her baby from her breast,
stating that she is schizophrenic, which hours of assessment and
therapy can confirm, [she] is not. . . . A vicious cycle often takes
place with Black women when scrutinized by authority figures,
that they will react out of anxiety, based on years of systemic
racism, only to find that very anxiety response used against
them.” Dr. Strong stated “[Mother] has done everything asked of
her,” including individual parenting and anger management
classes, and a vocational training program. The letter closed: “I
hope the reunification of this mother with her child can be done
as soon as possible, so that not another minute of this formative
developmental phase be lost. [¶] Until she is reunified with her
child, she cannot be expected to act any other way than
distraught. I am reminded of the words of Jesus, who lambasted
the authorities of his day for ‘binding burdens upon other men’s
backs that they themselves could never carry.’ I hope she
receives justice for the medical crimes committed against her and
her child.”
Before the 12-month review hearing, a Department social
worker asked Mother why Dr. Strong did not include information
11
concerning her medication and housing in his progress letter.
Mother said that when she asked Dr. Strong to include that
information, he refused. Mother discussed enrolling in a second
individual counseling program, but the Department pointed out
she was receiving treatment from Dr. Strong and that she was
not ordered to enroll in a second individual counseling program.
Mother also reported she was still taking her medication under
the supervision of Dr. Kaz. The Department asked Mother about
“where she was currently living, the contact information of her
case manager, her employment internship, and a progress letter
from Dr. Kaz,” but, according to the Department, she “was not
able to confirm any of the questions asked of her.” The
Department called Dr. Kaz to discuss Mother’s progress with
managing her medications but was unable to leave a message.
The Department did reach Mother’s anger management
and parenting class program facilitator, who reported that
Mother had completed 28 sessions of a 16-session parenting
course and 27 sessions of a 16-session anger management course.1
A week later, the executive director of the facility offering the
anger management classes reported Mother “had a meltdown”
during a class when she was told the Department recommended
she continue anger management classes.2 The executive director
did not know if Mother was taking her medication.
1
The Department and the program facilitator had decided in
July 2021 that Mother needed more sessions “to gain a better
insight.”
2
According to the Department, a social worker told Mother
she could cease participation in the classes but was free to
continue if she needed additional help.
12
In a last minute information report submitted before the
12-month review hearing, the Department stated Mother had
been advised in June 2021 that the Department could pay for
court ordered services but she had “refused every month from
June 2021 through October 2021.” The report also revealed one
monitored visit between Mother and J.S. had to be terminated
because of Mother’s “assaultive and aggressive behavior towards
the monitor.” According to the report, Mother met with a
Department social worker in December 2021 and provided an
enrollment and progress letter for a new anger management
program, copies of recently filled prescription medications, and
materials detailing her efforts to search for housing.
At the 12-month review hearing, Mother asked the juvenile
court to return J.S. to her custody or, failing that, to continue
reunification services. Mother argued she completed “her entire
case plan” (meaning programs, counseling, taking medication as
prescribed, and visiting J.S.). Mother acknowledged the
Department was recommending termination of reunification
services but argued the recommendation was made “because the
social worker was not happy with [Mother’s] attitude.”
The attorney for J.S. urged the court to terminate
reunification services. Counsel argued: “Mother has done
everything in the case plan and yet it’s not enough. She
completed additional anger management classes, . . . [s]he’s still
not able to control her anger.” Counsel also argued that despite
parenting classes, Mother was “unable to care for [J.S.’s] needs
during monitored visitation.” The Department likewise argued
reunification services should be terminated.
The juvenile court stated it was “sympathetic” to Mother,
as she “seems to be going to her classes and wants to reunify
13
with” J.S. But the court observed that “Mother, in her behaviors
not only at visits but in interactions with the social worker and
the caregiver, is not showing a change in her behaviors that
brought her before this court. Her mental health issues still are
an ongoing issue and are manifesting itself in terms of her angry
outbursts.” The court found the Department provided reasonable
reunification services but “Mother has not made significant
progress in resolving the problems that led to [J.S.]’s removal
from the home, and Mother has not demonstrated the capacity
and ability to complete the objectives of the treatment plan and
to provide for the child’s safety, protection, physical and
emotional well-being.” The court accordingly terminated
reunification services and set a permanency planning hearing
pursuant to Welfare and Institutions Code section 366.26.
II. DISCUSSION
Mother argues the juvenile court’s reasonable services
finding is unsupported by the evidence and asserts the
Department should have sought out more detailed information
about her mental health diagnosis and replaced Dr. Strong as her
therapist. As we go on to explain, the specific contention about
replacing Dr. Strong is waived for failure to raise that issue in
the juvenile court and the broader assertion that there is no
substantial evidence supporting the reasonable services finding
does not jibe with our view of the record. The Department
identified the problems leading to Mother’s loss of custody;
offered numerous services designed to remedy those problems;
and maintained ongoing contact with Mother, which included
offering assistance when she demonstrated issues with
compliance. It is well-settled that services provided need only be
14
reasonable, not perfect or even ideal, and the Department’s
efforts were more than adequate under that standard.
If a juvenile court removes a child from parental custody
and assumes dependency jurisdiction under Welfare and
Institutions Code section 300, the court may require the
Department to provide reunification services to the parent and
order participation in a counseling program “designed to
eliminate those conditions that led to the court’s finding that the
child is a person described by [Welfare and Institutions Code,]
[s]ection 300.” (Welf. & Inst. Code, § 362, subd. (d); see also Welf.
& Inst. Code, § 361.5, subd. (a).) The court then monitors
compliance with reunification services at periodic hearings.
The Department “must make a good faith effort to provide
reasonable services responsive to the unique needs of each
family, and the plan must be . . . ‘“‘designed to eliminate those
conditions which led to the juvenile court’s jurisdictional
finding.’”’ [Citation.]” (Patricia W. v. Superior Court (2016) 244
Cal.App.4th 397, 420 (Patricia W.).) The Department’s efforts are
judged according to the circumstances of the particular case.
(Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340,
1345; see also In re Misako R. (1991) 2 Cal.App.4th 538,
547 (Misako R.).) “Services will be found reasonable if the
Department has ‘identified the problems leading to the loss of
custody, offered services designed to remedy those problems,
maintained reasonable contact with the parents during the
course of the service plan, and made reasonable efforts to assist
the parents in areas where compliance proved difficult . . . .’
[Citation.]” (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.)
We review a juvenile court’s finding that reasonable
services were provided for substantial evidence, considering the
15
record in the light most favorable to the Department and in light
of the clear and convincing standard of proof that applies in the
juvenile court. (Patricia W., supra, 244 Cal.App.4th at 419; see
also Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005, 1011.)
Substantial evidence supports the juvenile court’s
reasonable services finding. Mother received a mental health
evaluation and a diagnosis. She was being treated by a
psychiatrist who prescribed medication to treat her mental
illness. She was also referred to, and attended, parenting,
domestic violence, and anger management classes. The
Department further offered Mother resources for locating housing
and transportation funding, maintained regular contact with
Mother throughout the reunification period, made suggestions to
help her with her case plan compliance, and attempted to
mediate conflicts between her and J.S.’s foster mother. These are
reasonable efforts to eliminate the basis on which the juvenile
court assumed jurisdiction over J.S. As the juvenile court
recognized in its remarks at the 12-month review hearing, that
these efforts did not ultimately succeed in transforming Mother’s
behavior to enable reunification was largely a function of her
intransigence (indeed, she expressly refused the Department’s
assistance at times), not the absence of efforts made by the
Department.
The only specific counterargument Mother offers to the
contrary is the claim that the Department cannot be found to
have provided reasonable services because it did not replace Dr.
Strong as Mother’s therapist and did not otherwise to obtain
more information about her mental health diagnosis. The point
concerning Dr. Strong, however, is waived. Mother’s attorney in
the juvenile court was well aware of the content of Dr. Strong’s
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progress letters, the Department’s view that the letters were
inappropriate, and the Department’s statements that it would
search for another therapist for Mother. Despite that awareness,
Mother’s attorney never objected to Dr. Strong’s continued
service as her therapist and this is easily understood as a tactical
judgment—Dr. Strong was a vocal, steadfast advocate for Mother
(even if unprofessional to a degree) and there was no guarantee a
new therapist would be as strongly in her corner. (See In re S.B.
(2004) 32 Cal.4th 1287, 1293, fn. 2 [“waiver is the ‘“intentional
relinquishment or abandonment of a known right”’”].)
Furthermore, Mother was also under the continued care of her
psychiatrist, Dr. Kaz, who was prescribing her medication. So
even if the Department should have done more to search for a
new therapist (and even if Mother would have then accepted a
new therapist) or tried to obtain more information about Mother’s
mental health diagnosis, the absence of evidence that the
Department did so does not defeat a reasonable services finding.
(Misako R., supra, 2 Cal.App.4th at 547 [“The standard is not
whether the services provided were the best that might be
provided in an ideal world, but whether the services were
reasonable under the circumstances”].)
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DISPOSITION
The petition for extraordinary writ is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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