Patricia W. v. Superior Court ( 2016 )

Filed 1/28/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
PATRICIA W., et al.,
Petitioners,
v.
THE SUPERIOR COURT OF DEL A146378
NORTE COUNTY,
(Del Norte County
Respondent; Super. Ct. No. JVSQ15-6015)
DEL NORTE COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
et al.,
Real Parties in Interest.
INTRODUCTION
Patricia W. (mother) and J. T. (father) are the parents of two and a half year-old
S.L. They petition for extraordinary relief to overturn an order entered at a six-month
review hearing terminating reunification services for them, and setting a hearing for
January 22, 2016, under Welfare and Institutions Code section1 366.26 to establish a
permanent plan for their son’s adoption.
This is a sad tale of a family broken up by mental illness. A local social services
agency, acting with commendable speed, removed a toddler from his parents’ custody
when his mother ran out of her medication and, a week later, experienced a relapse of
schizophrenic episodes that involved violent hallucinations of harming and killing their
1
Except where otherwise indicated, all further statutory references are to the
Welfare and Institutions Code.
1
child. The sole reason it removed the child from the father’s custody was a concern he
was in denial about the gravity of the mother’s mental illness and therefore could not, and
would not, protect the child from his mother.
The law requires a court to decide, at six months, whether a parent has been
provided or offered “reasonable services . . . designed to aid the parent or legal guardian
in overcoming the problems that led to the initial removal and the continued custody of
the child . . . .” (§366.21, subd. (e).) Here, the problem that led to the child’s detention
was the mother’s failure to properly take her medication. But there is no evidence the
agency in this case even sought to diagnose the mother’s mental illness and her
medication needs as part of a case plan, much less help S.L.’s parents ascertain whether
and how they could more effectively manage and monitor her medication to avoid
another relapse.
The agency got court approval for two psychiatric examinations of the mother, but
not in order to facilitate reunification services for either parent. Rather, it did so in order
to potentially bypass mother’s reunification services altogether, due to her mental illness.
And even so, the only evidence of the results consists of several sentences in the social
worker’s report that shed practically no light on the examining psychologists’
conclusions or mother’s condition. The mother also had a treating psychiatrist who
prescribed and monitored her medication, but that individual was not called as a witness.
Her social worker also had doubts during the reunification period that the mother was
staying on her medication but, by all accounts, did not fully investigate whether that was
true. She admitted on cross-examination she didn’t even know if mother was on the right
medication, and that if mother wasn’t then her recommendation to terminate services
might change. And whatever mother’s medication needs might have been, a subject
concerning which there is no substantial evidence from any competent medical
professional, there also is no evidence the agency offered services to either parent
designed to help them improve mother’s ability to take her medication as prescribed.
2
In these circumstances, we conclude no substantial evidence supports the trial
court’s findings that adequate reunification services were provided to either parent.
Accordingly, we grant both petitions.
BACKGROUND
S.L. was born in July 2013. His parents are unmarried but live together. When
S.L. was born, mother began hearing voices for the first time in her life, which initially
was thought to be post-partum depression but later was diagnosed as schizophrenia. The
voices were scary to her, and sometimes, though not always, would urge her to injure or
kill people, including her son. She testified she didn’t like hearing these voices and
resisted them, and would seek immediate psychiatric treatment whenever she heard
them—either by contacting her counselor or psychiatrist on an emergency basis, or by
going to a hospital psychiatric ward where she could be safely away from her son and
detained until the hallucinations had passed.
When S.L. was two months old, the Del Norte County Department of Health and
Human Services, Child Protective Services (“Agency”) initiated dependency proceedings
and removed S.L. from his parents’ custody, due to concerns arising from mother’s
mental illness. The record contains few details of that proceeding. Based largely on
reports filed by the Agency and S.L.’s court-appointed advocate, it appears the initial
proceeding was opened in September 2013 because mother was having delusions and
hearing voices telling her to kill her child. Mother and father received counseling and
other parenting services. After nine months, S.L. was returned to his parents’ custody
and judicial supervision terminated. Under the safety plan put into place, father was not
to leave their infant son alone with mother, although he had done so three times while the
case was open, and he was to monitor mother’s medication to ensure she took it as
prescribed.
3
I.
The Petition
On February 4, 2015, shortly after the first case closed, the Agency initiated this
dependency proceeding and S.L. was detained a second time. He was 18 months old.2
According to the Agency, mother was expected to be released from a mental
health facility the following day and father was refusing to speak with the Agency. Yet
“[m]ental [h]ealth professionals have voiced concern if [S.L.] is left alone with mother,
for even a few moments, she is capable of seriously harming or killing her child.” The
petition alleged father “has stated that mother does not have a significant mental health
problem, that ‘she’s never done anything violent and is very passive’ and he is not
worried about her hurting their child.” The same social worker who had been involved in
the prior dependency proceeding, Deidra Ward, was assigned to this case.
The following day, after S.L. had been removed, the Agency filed an amended
petition asserting jurisdiction both under section 300, subdivision (a), alleging mother
posed a risk of serious physical harm to S.L., and under section 300, subdivision (b)
alleging father was failing to protect S.L. from mother and mother was unable to care for
him due to mental illness.
Allegations Against Mother. The amended petition alleged that mother (1)
“suffers from bipolar with persistent delusions along with command auditory
hallucinations. The voices [mother] hears have told her to kill her son . . . , her boyfriend
[father], family members, and herself”; (2) “has identified several plans as to how she
will kill her son, [S.L.], age 1. She has identified use of rat poison, use of a knife,
drowning in a bathtub and has stated that if she had access to firearms, she would already
have killed [S.L.]”; (3) “has been non compliant with her medications which exacerbates
her condition” and “has doubled up on her medication so she is off her medications prior
to refill and does not request a refill of the prescribed antipsychotic medication”; (4) “has
2
It is unclear precisely how much time elapsed between the two proceedings. It
appears to have been anywhere from one month to several.
4
been hospitalized in psychiatric hospitals on at least two separate occasions since
January 15, 2015 for periods of longer than one week”; and (5) “[o]n or about
February 3, 2015, [mother] continued to hear auditory hallucinations commanding her to
commit infanticide despite medication compliance in a psychiatric hospital setting.
[Mother’s] continued hallucinations place [S.L.] at significant risk of harm or death.”
Allegations Against Father. The Agency alleged, in effect, that father was in
denial about the dangers mother posed to S.L. It alleged he (1) “minimizes [mother’s]
conditions and has related that he does not believe that [mother’s] mental illness impacts
her ability to parent or care for [S.L.]”; (2) has stated “[mother] does not have a
significant mental health problem[,] that[] “she’s never done anything violent and is very
passive’” and that “he is not worried that [mother] will harm [S.L.]”; and (3) “is unable to
protect his son [S.L.] as he does not believe that the mother will harm the child. This
places [S.L.] at significant risk of harm or death.”
II.
Detention and Jurisdiction Hearings
At the detention hearing the next day, the court ordered detention of S.L. who had
been placed in a licensed foster home. By this point, mother was homeless and living in
a shelter, but by the end of the day she had reconciled with father and was back in the
home.
According to the court’s minutes of the detention hearing, “the Court expects
maximum visitation for the father,” but for reasons that are not apparent from the record,
the court ordered only the minimum amount under its standing order for each parent, as
requested by the Agency, which was five hours of weekly supervised visitation. The
minutes also state “[t]he Court suggests a psychological evaluation of the father.” The
court ordered the Agency to provide “[m]ental health service and treatment” and
“[p]arenting” services to reunify S.L. with his family.
The Agency’s detention report described three reports it had received during a
two-and-a-half-week period beginning January 15, 2015, which prompted it to initiate
5
this proceeding, all of which shared the “reoccuring [sic] theme that [mother] wants to
kill her child.”
In the first incident, mother reportedly tried jumping out of a moving vehicle while
father and S.L. were with her. Law enforcement officials took her to a hospital for
evaluation, where she was placed on a 72-hour hold due to suicidal and homicidal
thoughts. She reported hearing voices telling her to kill herself, her child and her family.
According to the medical evaluation, mother “was not compliant with her medications,
she was doubling up on her antipsychotic medications and would subsequently run out of
medication.” Father opposed the hold, reported there were no mental health concerns
with mother, and stated everything would be fine and he wanted to take her home.
Several days later, Ward and another social worker spoke with father who told them
mother had been off her medication for eight days and had been waiting to be seen by her
mental health provider for a refill, because unbeknownst to him she had been doubling up
on her medication. He watched mother take her medications every night but said he
thought she was doubling up and taking them in the morning, too, which had caused her
to run out. The two social workers reported smelling marijuana and believed father had
been smoking it in S.L.’s presence in the living room, which he denied.
The second incident took place roughly a week later, after mother had been
released from the psychiatric hospital but then voluntarily checked herself back in a day
later. Mother was again reported as having heard voices and having detailed, homicidal
thoughts. Father was reported as having been frustrated that mother “does not take her
medications consistently” but, again, was not worried and did not believe she would ever
hurt S.L. And, mother told the hospital’s mental health staff that father would leave S.L.
alone with her even though he knew about her violent thoughts.
According to the detention report, mother spoke with Ward by phone in this period
and reported that “they narrowed down her diagnosis to Mood Disorder but they are not
sure which one” and told Ward “they changed her medication to Latuda and she still
takes Effexor.”
6
The third incident took place roughly ten days later, the day before the Agency
initiated this proceeding, after mother had been transferred to another psychiatric
hospital. Once again, she was reported as hearing voices telling her to kill her baby and
others, including that “[i]t’s a good thing I don’t have a gun or I would shoot him.”
According to that mandated reporter, “killing her child is a recurring theme in her illness
which is not well controlled despite medication compliance while [mother] was
hospitalized.”
The Agency concluded that father was unable or unwilling “to take the protective
measures necessary to assure [S.L.’s] health and welfare. He does not believe her mental
illness is severe and does not believe that [mother] would act on what the voices are
telling her. One of the reporting parties stated [mother] should not be alone with her
child, not even for a few minutes as this is enough time for [her] to act on what the voices
are telling her.” Yet father “has consistently and continually minimized the seriousness
of [mother’s] mental illness and despite knowing that she has thought of killing [S.L.]
and that she has not been consistent with her medications, has left [S.L.] alone in her care
which places [S.L.] at serious risk of physical harm or death.”
According to the detention report, previous services the Agency had provided the
family “have not been effective in assisting [mother] or [father] to address and resolve
their problems involving [mother’s] mental illness and [father’s] failure to protect.”
Those services consisted of “Counseling, Case Management, Parent Training, Public
Assistance Services, Transportation, Other Services.”
The jurisdiction hearing took place two weeks later, on February 20, 2015, before
a different judge. There was evidence in the Agency’s jurisdiction report that early on, in
February, father had been discouraging mother from taking her medication and seeking
mental health treatment and that mother was taking medication without any supervision.
The judge found true the petition’s allegations, asserted jurisdiction over S.L.
under section 300, subdivisions (a) and (b), and set the matter for a disposition hearing.
7
III.
March 20, 2015 Disposition Hearing
A month later, the Agency filed a disposition report that included a proposed case
plan, but expressed reservations as to whether mother would be able to engage in or
benefit from reunification services. According to the disposition report, mother reported
having five medical diagnoses: “OCD, bipolar, anxiety, depression, and schizophrenia.”
She believed she already had killed two children and three other people, and was capable
of killing her son too. The disposition report was critical of father’s personality
(“reclusive and isolating,” “controlling and abusive,” “domineering,” “condescending,”
“dismissive,” “critical,” “blames others”) and described tensions in the parents’ “on again
off again” relationship. It also reflected some reluctance on their part toward keeping
their son.3
The Agency recommended the following reunification services:
1. Participation in a program called Pre-CAPTP in order to learn appropriate
anger management skills for parents;
2. Work with a Safety Organized Practice (SOP) team in order to develop positive
support systems with at least two friends or family to whom they could turn for help
when feeling overwhelmed or stressed; and
3. Participation in a parenting program called “Incredible Years” in order to learn
appropriate parenting skills.
4. The Agency also recommended mother continue to meet with her mental health
clinician and her tele-psychiatrist in order both to “help her not harm others, stay safe,
3
According to the Agency, mother said she should never be around children, is
not able to parent her son and should not be alone with him, wanted her son to live with
her mother in New York where S.L. would be safe, “would like to put her backpack on
and hitchhike away from here” and left a phone message telling the Agency that she
would not visit S.L. anymore because she’d like him put up for adoption. For his part,
father said mother is crazy and he doesn’t want her around, wanted her to go live with her
own mother and he would keep their son, but also that he didn’t want to “ ‘do this alone,
you might as well send [S.L.] to grandma’s.’ ”
8
and live happy” and to “monitor and manage her psychotropic medications and her
symptoms related to her mental disability.”4
Shortly after proposing this case plan, the Agency took steps to bypass
reunification services altogether and terminate mother’s parental rights on the ground of
her mental illness. Citing both Family Code section 78275 and section 361.5,
subdivision (b)(2) which provides that reunification services need not be provided to a
parent or guardian found to be suffering from a mental disability “that renders him or her
incapable of utilizing those services” (§ 361.5, subd. (b)(2)), the Agency filed a request
for two court-ordered psychological evaluations of mother. The stated purpose was “to
determine if objective mental health professionals (1) believe she is capable of killing,
injuring, or neglecting her child and (2) believe she could benefit from the services
available in order to safely reunify with her child.” The Agency stated it “believes
[mother] is not capable of parenting her son without putting him at extreme risk of
physical abuse or neglect based on her mental disability.” It believed mother “wants her
child safe and knows she is not able to do this but she is persuaded by her partner to keep
trying because he does not want to parent this child alone and does not want to give up on
the child.”
At the disposition hearing on March 20, 2015, the court declared S.L. a dependent,
ordered the Agency’s recommended reunification services, and ordered mother to submit
to an evaluation by “2 psychologists/psychiatrists.”
Mother testified she was examined by two psychologists thereafter: five days later
on March 25 by “Dr. Roy,” and three months later, on June 30, by “Dr. Morrell.”
4
In addition, father, who had a number of drug convictions for marijuana-related
offenses, claimed to be using medical marijuana to treat chronic back pain. The Agency
expressed concern he “lacks the alertness and energy necessary to parent an active, happy
toddler.” So the Agency also recommended as part of the case plan he “consult with his
primary care provider to discuss alternatives to help him live with his disability and be
able to function by demonstrating he can provide safe care for his child.”
5
That statute governs petitions to terminate parental rights based on mental
disability. (Fam. Code, § 7827) It requires the evidence of “any two experts” who meet
specified licensing and credentialing requirements. (See id. subd. (c).)
9
IV.
The Agency’s Six-month Status Review Report
Shortly before the six-month review hearing, the Agency filed a status report
recommending that reunification services be terminated and a permanent planning
hearing set under section 366.26.
According to the Agency, S.L.’s parents “want their son home so they can parent
him the way they like,” and believe they did nothing wrong. But the Agency reported
they “have not fully engaged in the services outlined in their case plan.” The Agency
remained “very concerned” for the child’s safety if he were returned to either parent,
“[g]iven the severity of the directions [mother] was hearing from the voices in her head
before [S.L.] was detained” and “the minimizing and sometimes flat out denial by
[father] that the voices were being heard or that [mother] could potentially act upon
them.”
Mother. The Agency reported mother “states she is better now, she hasn’t heard
voices in a long time and she should be able to parent her son,” and that “her mental
health crisis appears to be in abeyance for the time being, however she has stated she
does not like the way the medication makes her feel but when not on medication, she has
stated she knows she cannot take care of [her son].”
The Agency reported on the results of the court-ordered mental health
examinations in three sentences: “Based on the psychological evaluations and a brief
conversation with both Dr. Roy and Dr. Morrell, [mother’s] mental health symptoms are
severe and could have ‘horrendous consequences’ according to Dr. Roy. A mutual
concern is [mother’s] defensiveness about her mental illness that results in her denial of
her condition and restricts the reliability of the testing. A positive is that she appears to
be medication compliant but needs to remain so in order to ameliorate the potential for
hearing voices (auditory command hallucinations) that tell her to kill her partner and her
10
son and act upon those instructions.” The Agency also noted some negative feedback
from the examining doctors concerning the parents’ relationship.6
The Agency’s six-month status report also expressed doubts mother was taking
her medication. It noted her “behavior of late has been quite concerning and not her
normal behavior, which causes the Department to believe she is not taking her medication
as required.” It reported mother “states she is taking her medication as required, however
this has not been verified.” And it described abrupt “mood changes” whereby mother
“becomes agitated, aggressive, threatening, and frenetic.” It reported, “This change in
behavior causes a concern that when anyone tells [mother] something that she does not
agree with or does not want to hear, she goes into this intense behavior that is socially
unacceptable and alarming and will result in her not getting her needs or her child’s needs
met.”
Mother’s participation in her case plan got mixed reviews. The most significant
areas in which the Agency reported her as falling short was refusing to participate in
several SOP meetings, and failing to complete the Incredible Years parenting class which
she had completed in the earlier case. Mother had regularly been meeting with her
psychiatrist and her therapist, Carol Kays, during the reunification period though she
missed two appointments with her therapist.
Father. The Agency reported father was still in “continued denial about the
seriousness of [mother’s] mental health crisis when [S.L.] was removed,” and was
“refus[ing] to cooperate and communicate” with the Agency. He was reportedly resistant
to taking parenting advice. The Agency also remarked upon father’s physical limitations,
6
It reported, “Another shared concern from the psychologists is that [father] does
not recognize his faults and shortcomings so is unable to make necessary changes along
with not accepting and minimizing the seriousness of [mother’s] mental illness. Dr.
Morrell describes [mother’s] relationship with [father] as ‘he could be a fly in the
ointment’ based on corroborative information that leads him to conclude [father] is
controlling and immature. Dr. Roy believes the relationship between [mother] and
[father] ‘seems tenuous, is perhaps convenience, and is lacking in affection, respect, and
committed love.’ ”
11
commenting he “states he is disabled, often in pain and cannot lift [S.L.] or be physically
playful with him, so during visits he often sits when [S.L.] wants to play.”
Father reportedly met none of his objectives under the case plan, other than having
recently completed the intake process for the pre-CAPTP anger management class. He
too had walked out of several SOP meetings and, like mother, did not participate in the
Incredible Years parenting program, which he too had completed in the first case.7
V.
Report by Court-appointed Special Advocate
Before the hearing, S.L.’s court-appointed special advocate (CASA) filed a report
recommending termination of parental rights.
CASA’s report included observations about the parents’ participation in their case
plan that were largely duplicative of the Agency’s.
CASA’s feedback concerning the family’s supervised visitation was largely
positive. During the three-and-a-half month period from May 5 to August 27, mother had
attended 49 of 51 visitations, missing only two; father had attended 46, missing five. The
visitation aide’s summary of that period was almost entirely positive, noting only one
occasion on which mother became angry, screamed uncontrollably, and swore at the aide
while father tried to quiet her down. The following day, there was an uneventful, more
subdued visit during which the visitation aide noticed bruising on mother’s jaw and arm
and a cloth wrapped around her wrist. And on the following day, September 3, the
parents visited S.L. at a park, where the visitation aide noted mother played with S.L.
while father remained mostly seated.
The advocate, Christine Slette, observed two supervised visitations and had few
criticisms of either parent. On one occasion, she thought father seemed pre-occupied
with answering his phone which rang frequently. And during the second visitation,
7
The Agency couldn’t verify whether father had consulted with his doctor about
alternatives to medical marijuana, but father provided proof later at the hearing that he
had done so which satisfied the Agency.
12
mother “took the lead” interacting with S.L. compared to father, but spoke in a monotone
voice.
CASA concluded that it “continues to have concerns for the safety and well-being
of [S.L.] . . . due to [mother’s] on-going mental health disability and [father’s] inability
to put [S.L.’s] wellbeing at the forefront of his responsibilities.” The report noted that
S.L. “has been under the court’s jurisdiction 23 months out of 26 months of his life,” and
recommended terminating parental rights “[d]ue to the length of time [S.L.] has been
under the Court’s jurisdiction and the lack of progress with the parents’ case plan,”
because CASA “does not see any indication that if given more time, the parents would be
successful in completing their case plan and providing a safe and permanent home.”
VI.
Six-month Review Hearing
A contested, six-month review hearing took place on September 28, 2015, before a
third judge. By this time, mother and father were living together again.
The documentary record consisted of all of the Agency’s reports and CASA’s
report, and did not include the case file from the earlier dependency proceeding nor the
written reports prepared by the two doctors who had examined mother pursuant to court
order.8
Mother’s Testimony. Mother testified she has been diagnosed as a schizophrenic,
and that she has tried six or seven of the approximately 30 available medications for her
condition.
According to mother, she was stable when S.L. was returned to her after the first
case, but then had a relapse in January when she ran out of her medication, Effexor. She
thought she had been taking the prescribed amount but wasn’t sure. She recalled she
might have been taking a second medication at the time too, called Geodon, which is why
8
In response to an inquiry by this court, counsel for the Agency informed us that
both doctors prepared written reports and that “[c]opies were provided to mother’s
attorney only.” Father’s counsel confirmed that the reports were not provided to the trial
court and are not part of the trial court record.
13
she might have run out because one of the two medications was supposed to be taken
twice a day and the other one only once. She called her psychiatrist and a pharmacy
when she ran out, and was waiting for a different medication when hallucinations began
about a week later. She described not feeling right one night at dinner, “like something
was off” and so she asked father to drive her to the psychiatric ward of a local hospital,
where she voluntarily had herself admitted. She remained there for several days, which is
when she began hearing the voices again and hospital staff reported her to the Agency.
She was briefly released but then checked herself back into another local hospital because
she was still hearing voices.
Mother testified she had been on the same medication, Latuda, since March which
was working “as far as I know” and “makes me feel great,” and she denied the Agency’s
report that she didn’t like how it made her feel. She testified she had said that about
different medications she had been on, Lithium and Geodon, when discharged from the
hospital. According to mother, she told the hospital those were the wrong medications:
she didn’t think she needed Lithium because she’s not bipolar, and she thought there was
a better medication for her than Geodon that wouldn’t have the same side effects. She
then consulted about medications with her psychiatrist who switched her to Latuda,
which she intends to take for the foreseeable future. She also testified she’d be open to
trying a different medication if her psychiatrist recommended it.
Mother repeatedly testified about medication as an integral, critical part of her life
that she not only needed but wanted. She acknowledged she needs to be on medication
for life, and testified it’s no secret from family, neighbors and friends but “definitely, you
know, something that’s part of my life.” She testified she doesn’t mind taking
medication “at all,” and in fact “I want to take medications because I want to be better.
You know, I want to be healthy. I want to be around my kid. I want to be around other
people’s kids too.” She testified, “I am doing the very best that I can to stay stabilized”
and stressed, “There’s so many medications available. There’s—it’s impossible to say
that I’m done for because that’s not true.”
14
Mother also described the safety precautions she takes. She sets a daily phone
alarm to remind her to take her medication, and takes it daily at dinner in father’s
presence. She also texts her mother when she takes her medication or her mother calls
her. Her mother’s involvement was an additional, new “safety net” step she took after
her relapse.
Questioned about the Agency’s concern it couldn’t verify whether she was taking
her medication, mother offered to take a blood test because “I know for sure I’ve been
taking my medication.” Although she wasn’t sure if her current medication would show
up in a blood test, she testified she’d had blood tests before and that “if I call my
psychiatrist and request one, then I could get one as soon as possible for the court so you
guys can see that.”
Mother also testified at some length about her own recognition of the need to seek
immediate help if she hears voices, and the importance of being on the right medication.
We quote portions of her lengthy testimony:
“I definitely think the [current] medication is helping, because I haven’t been back
to the psychiatric ward. And if it gets really bad, that’s where I end up going. And I’ve
been out since February, the beginning of February. And I’ve been functioning really
well. And I haven’t been hearing any voices. And if I do start to hear voices, I go right
back to—I’m the one that asked for help. No one told me to do this. I’m the one that
was, like, yeah, I need to get help. So I would immediately call my psychiatrist or call
my counselor. [¶] I’m allowed to show up at mental health even if I don’t have a
counseling appointment for, like, an emergency appointment. So I would take advantage
of those opportunities if I needed to.
“Q So if you were to hear voices, is that something that
you would, perhaps, listen to the voices, or would you go for help immediately?
“A No. Yeah. I definitely wouldn’t listen to the voices. I’ve never wanted to
listen to any voices that I’ve had. I’ve gone immediately for help. As—as soon as I start
to hear voices, I’ve gone immediately for help. I didn’t stick around. I didn’t, like, hang
out. I didn’t say, oh, like, maybe they’ll go away. [¶] Because I’m part of online support
15
groups for women that have the same conditions as me, multiple online support groups.
And, you know, most of them have to take medication. So it’s all about the medication
really what it comes down. And I’m not a doctor. So if I feel out of sorts or—you know,
I just go right to the doctor, try to see the psychiatrist or—you know, I’ve gone to the
hospital before.”
Mother testified she was frustrated with her social worker in part because she
didn’t think the social worker understood she didn’t want to act on her impulses and
would seek help whenever she heard the voices, including the time she checked herself
into the psychiatric ward to be safe and away from S.L. She also testified she has other
safe places to go: a nearby neighbor’s house and, if need be, New York.
Mother denied having a volatile relationship with father, denied the Agency’s
speculation that father had physically abused her or that she had hurt herself, and testified
they get along “really well.” According to mother, the injuries mentioned in the
Agency’s report happened when she fell during a hike, and another time when she
accidently walked into a pole while inattentive and texting.
Mother testified she didn’t agree with the results of the court-ordered mental
examinations by Drs. Roy and Morrell from some months ago and queried whether it
would be possible to get one or two additional psychological evaluations for “more
input.”
She also testified that the five hours of weekly supervised visitation with S.L was
heartbreaking to her, that their young son was at a critical age and needed more time with
his parents and that for months she had been asking for more visitation but had been
turned down.
Mother testified she was even willing to move and let father retain sole custody of
their son. According to mother, “the fact that they’re trying to terminate services to both
parents when [father] is a really good dad, has never had any type of issues that I’ve had
and he raises his kid really good, is just really not right.” She testified she was
considering buying a new home and had been planning to move together with father, but
that she would be willing to leave him permanently if the Agency returned their son to
16
father and, furthermore, that she can afford to live separately because she has started
receiving disability income. She also testified she’d been seriously thinking of moving
back to New York, her mother had an apartment for her “ready to go,” she already had a
bus ticket, and could be on a bus to New York the next day.
Mother also testified she was doing her best to complete her case plan. She
described in some detail those efforts which we refrain from summarizing. We note,
however, that she testified she didn’t repeat the Incredible Years parenting class a second
time because Ward told them it was unnecessary. And the reason she gave for declining
to participate further in SOP meetings (without a lawyer present, at least) was because
Ward told them during an SOP meeting that she didn’t think they wanted to be full-time
parents, which upset and angered both parents, lost her their trust and prompted them to
request a new social worker.
With respect to mental health services, mother testified she began seeing a
psychiatrist, Dr. Sharman, when she got out of the hospital from her relapse, who
prescribes her medication and she meets with him every eight weeks, apparently by
phone (“it’s a telepsychiatry”). She also sees a mental health clinician, Carol Kays,
weekly to “talk about what’s going on in my life” which she found helpful, and whenever
she and Kays were unable to meet in person they would always talk by phone.
Father’s Testimony. Father disagreed with the Agency’s depiction of his
relationship with mother, and testified they were “very loving.” Nevertheless, father
testified his son is of the utmost importance to him, he wants his son back and repeatedly
testified he would even be willing to leave mother permanently if he could get his son
back.
Father denied that he didn’t take mother’s condition seriously. He felt he was
“compassionate and very understanding” of mother’s condition, thinks she is a good,
loving mother, stressed repeatedly she has never intended to harm S.L. and has never
acted on the voices but has always sought help for them. And he testified that this was
the source of his frustrations in this case compared to the first one. We quote his
testimony: “And, you know, this last time we asked for help, and we get a stick to us,
17
you know, like. In the previous case when we asked for help and she went to the
hospital, we were commended. Oh, you’re doing the right thing. You’re asking for help.
Because she needs help. And everything is safe, you know. The case gets closed. [¶]
And we ask for help again, and we get totally shuffled around like we’re doing something
wrong. [¶] And there’s never been any harm. There’s never been any intent of harm.
There’s never been anything acted out. There’s never been anything except for, ‘I hear
some voices. I need help.’ [¶] So that’s why maybe I was so frustrated at the beginning
and maybe I rubbed our social worker the wrong way, because I was so upset that this
was happening again that I was kind of mad. And I was kind of, like, why are we doing
this again? When this is just picking up where it left off right here.”
Like mother, he was frustrated with Ward and with the Agency’s refusal to permit
them more than five hours of weekly visitation. He also didn’t agree with the Agency’s
decision to remove S.L. from his custody, because mother could have gone to stay
elsewhere temporarily, and thought the Agency could have “something set into place that
stated she could come back when they deemed appropriate, just as we want to do now.”
Father testified he’d never put so much energy into anything as trying to get his
son returned. And he felt he had been trying to do all he’d been asked to do under his
case plan. Here again, we refrain from delving into specifics other than to note that he
too testified the Agency had told them it was unnecessary to repeat the Incredible Years
parenting class, he corroborated mother’s account of the breakdown in their relationship
with Ward that occurred during the SOP meeting, and he attributed his tardiness in
getting onto a wait list for the pre-CAPTP anger management class to some initial
confusion, when he first started trying months ago in March or April, over how to sign up
and whether he even had to.
At the conclusion of father’s testimony, to avoid calling four neighbors as
witnesses, the court accepted an offer of proof that the parents “have a support group, a
18
safety group, safety net, and that these four different people from four different families
out there would testify that they’re part of that safety net.”9
Testimony of Social Worker Deidra Ward. We refrain from summarizing all of
Ward’s testimony about the degree to which the parents participated in their case plan,
because it is unnecessary to our decision. We note, however, she testified mother has
probably participated in “all” of the services in her case plan “to some degree.” Ward
corroborated that father didn’t get into the pre-CAPTP anger management program
earlier, on his first referral, because he told the program director not only that he didn’t
want to but he also didn’t think he had to. She testified the parents were required to
repeat the Incredible Years parenting class as a “refresher” but did not deny telling them
they didn’t have to; she merely could not recall discussing the subject with mother. And
Ward acknowledged telling the parents in the SOP meeting that “my worry was that they
did not want to be full-time parents, that they wanted to have their child placed in a
permanent home with someone other than themselves and they could be part-time
parents.” She testified mother “flipped out” and “hit the wall,” began screaming, her
body was shaking, she was making threats, they couldn’t get a word in to explain, and
she left. They tried to talk to father but he wouldn’t listen either, talked over them,
defended mother and then left abruptly too. Ward testified she had thought it was a valid
concern. And she knew the question would upset them, although not to that degree.
With regard to mother’s mental health services, Ward testified she was in regular
contact with mother’s therapist Kays, who reported mother had been attending therapy
sessions “[f]airly regularly,” and sometimes even comes in without an appointment “just
to seek help or talk to somebody.” Ward also acknowledged that three of the five weeks
of recently missed appointments were not mother’s fault. Ward also acknowledged
9
The court accepted the offer after the Agency’s counsel equivocated when asked
whether the Agency disputed it, remarking, “I don’t know. If that network wasn’t arrived
at through the SOP process, it hasn’t probably been vetted. Nobody knows for sure what
level of commitment. It’s not a plan in place. That’s not what the department does.
They might be out there. They might be willing to help. I don’t know. But it wasn’t
done through the case plan process.”
19
mother has been regularly meeting with her psychiatrist to “keep up with her meds
regularly.”
But Ward also didn’t know if mother had been taking her medication, or even if
she was on the right medication. According to Ward, mother was “very cooperative” at
the outset of this case, just like she had been in the first one. But later she became “very
volatile,” “very impulsive,” “very uncooperative” and began acting inconsistently as to
whether she wanted her son back or merely returned only to father, which caused Ward
and other social workers to wonder if mother either had stopped taking her medication or
was on the wrong medication.
We quote her testimony at some length: “And so it’s our observation, and I can
only speak for myself, that her behavior is different, very different. And not different
good; it’s different concerning. She’s very volatile. She’s very impulsive. She’s very
uncooperative. [¶] The last case I was the social worker also. And she was extremely
cooperative. She did everything she could to get her child back. She went out of her way
to maintain communication. If there was a problem, she’d address it. That’s not the way
she’s behaving this time. [¶] And so my concern—I’m not a medical professional, and
I could be wrong. But I don’t know if she’s taking her medication or if it’s even the
right medication for her. I did ask—when I called Ms. Kays, she’s kind of the
gatekeeper, the go-between between us and Dr. Sharman. And she said she didn’t
know, but she would try to find out if they’ve done any lab work. And the answer was
that they have not. And so we don’t know. We don’t know if she’s been taking her
meds.” (Italics added.)
Ward testified she had only limited discussions with mother about these
concerns, because they arose when the parents stopped wanting to communicate with
her. She also acknowledged it was possible the change in mother’s behavior could be
due to the fact mother was on different medication than in the first case, and that her
current medication might not be as effective. “It could be,” she testified, “Like I said,
that’s not my expertise.”
20
Asked why she recommended terminating reunification services, Ward explained
she hadn’t seen sufficient behavioral change in either parent which, to her, was more
important than whether they could “jump through hoops” of their case plan. Mother’s
“demeanor, her approachability, her sometimes lack of reasonable reaction is a concern.
[¶] Can she safely parent her child without any support? I would say she couldn’t. And
the support that she should have is with [father]. And that’s what I’m not seeing in him.”
She faulted father for not adequately monitoring mother’s medication as he was supposed
to do under the safety plan implemented in the first case, “minimiz[ing] the impact of him
not doing that,” and “minimiz[ing] her needs to have mental health treatment” at the
beginning of the case. “And he’s still not taking any responsibility for his part in why his
child was removed,” she testified. Asked whether father’s reaction could be due to the
fact that mother was able to police herself by seeking medical treatment when needed,
Ward answered, “I don’t know how that affects the issue. The issue was not that she
sought help, which she should be commended for, but that she got to the place where she
had to. [¶] The medication that she was supposed to be taking was supposed to be
monitored. She couldn’t do it. It was supposed to be monitored by [father], and it
wasn’t.”
Ward acknowledged that mother had told her, after getting released from the
hospital, she had run out of her medication and was trying to get a refill. But Ward also
testified mother would not have overdosed and run out had she been properly monitored.
Ward acknowledged if a doctor told her mother was presently on the wrong
medication, her opinion of mother’s current behavior and parenting abilities might be
different. She also thought there could be medications or programs available to assist
mother with her aggressive and irritable behavior.
Ward testified she would still recommend terminating reunification services if the
parents lived apart. According to Ward, they had discussed the possibility of the parents
living apart (including mother possibly relocating to New York) in order for father to
work toward getting their son back. But she alluded to the parents’ frequent on-again,
off-again pattern of breaking up and then reconciling soon after, apparently as a reason
21
the matter was not pursued further. Ward also was concerned about father’s ability to be
a single parent because “I haven’t seen him do a lot of active parenting.” She elaborated
with examples.10 Asked whether father would be a danger to S.L. if mother were not
living with him, Ward acknowledged father would not intentionally harm the child but
speculated that passive inaction might pose some danger.11
Ward testified if the parents were offered six more months of reunification
services, she would revisit the case plan and probably make changes, including more “in-
depth,” individual mental health counseling for mother and services that would enable
father to work on “communication and a respect with his partner as the mother of his
child, and his life partner.”
Testimony of S.L.’s Court-appointed Special Advocate. S.L.’s court-appointed
advocate, Christine Slette, testified she continued to support the Agency’s
recommendation to terminate services. She testified about the two visitations she had
observed, which cumulatively lasted about two hours. Her testimony on the subject was
largely duplicative of her report. She also testified that S.L. was receiving speech
therapy, and developmentally appears to be a normal, two year old.
10
For example: “He does a lot of sitting.” “He doesn’t interact frequently with
his child.” “[H]e is extremely authoritative towards [mother].” During supervised visits
to the park, “he does a lot of sitting on the park bench while mom runs [S.L.] around the
playground.” “[H]e doesn’t stand at the end of the slide and watch [S.L.] slide” even
though he does watch the child on the swing and sits and has snacks and meals with S.L.
at the park. During office visitations, father interacted with S.L. from a seated position
(putting the child on his lap to talk, or read), was less interactive than mother, and
changed his son’s diaper only when mother wasn’t present. Ward acknowledged she’d
observed, or read in visitation reports, about “good behavior” by him but not frequently.
“Most of the time he’s pretty stand-offish. I mean, he sits back and observes from a
distance.”
11
She testified, “That I don’t know. I don’t know. And the only assumption I
could make would be that it would be for lack of doing something, not for an intentional
harming. [¶] Q But that assumption is not consistent with the behavior that you
described when the mother is not doing something, he does step up to the plate such as
the changing the diapers and having played with the child, albeit not as much as we
would like. It’s totally an assumption what you just said; right? [¶] A Totally.”
22
Asked what her strongest reason was for recommending termination of
reunification services, she emphasized speed and past history: “In my view, in my role as
a CASA, it would be safe, permanent home for this child as soon as possible. [¶] And
this child has been under the jurisdiction of the court for about 24 months out of his 26 or
27 months to date of his life. And for that reason, I think it would be important to move
forward and find permanency for this child.”
At the conclusion of the hearing, the child’s lawyer reversed position and urged
the court to extend the parents’ reunification period. Following argument, the trial court
terminated reunification services and set a permanency planning hearing for January 22,
2016. The court found that returning S.L. to his parents would create a substantial risk of
detriment. The court clarified, “[B]asically, emotional detriment in the sense that he will
not thrive. He will not develop. He will not be able to overcome his current
underperformance, if you will, for lack of a better word.” The court found that
reasonable services had been offered and provided, the Agency complied with the case
plan, and that “[t]he extent of progress made by the parents has been insufficient.”
These petitions followed.
DISCUSSION
Welfare and Institutions Code section 366.21, subdivision (e) permits the trial
court, at a six-month review hearing for a dependent child under the age of three, to
schedule a permanency hearing pursuant to section 366.26 if the court “finds by clear and
convincing evidence that the parent failed to participate regularly and make substantive
progress in a court-ordered treatment plan.” (§ 366.21, subd. (e)(3).) But the court lacks
that discretion, and “shall continue the case to the 12-month permanency hearing,” if the
court finds either that there is a “substantial probability” the child may be returned to his
or her parent or legal guardian within six months, “or that reasonable services have not
been provided.” (Ibid.) The latter determination requires the court to decide “whether
reasonable services that were designed to aid the parent or legal guardian in overcoming
the problems that led to the initial removal and the continued custody of the child have
23
been provided or offered to the parent or legal guardian” and the court must either order
them initiated, continued or terminated. (§ 366.21, subd. (e)(8).)
Here, both parents challenge the sufficiency of the evidence to support the order
terminating reunification services to them.
Mother contends the reunification services she received were inadequate, because
her social worker should have better tailored the case plan to her mental illness and been
“more vigilant to assist the family,” noting the social worker thought she wasn’t taking
her medication, observed mother’s struggle with mental health during the case, and
believed additional mental health services could be helpful if another six months were
provided. Mother also contends the Agency failed to show by clear and convincing
evidence under section 366.21, subdivision(e) that mother failed to make substantial
progress in her case plan. Relatedly, she contends the trial court lacked discretion to set a
section 366.26 hearing because there was a substantial probability S.L. could be returned
to her within six months.
Father similarly contends (1) the Agency did not provide reasonable reunification
services tailored to his family; (2) he was not given adequate support to successfully
complete his case plan, because his social worker “mechanically did a minimal job in
promoting success of the case plan and staying in sufficient and meaningful contact with
me”; and (3) he made sufficient progress in his case plan to warrant additional
reunification services. He also argues he is willing to separate permanently from mother
if need be, which “is the hardest decision I have ever had to make, but I am now ready
and willing to do so to save my parental relationship with our son.”
We conclude there is no substantial evidence that reasonable services were
provided to S.L.’s parents and do not reach the remaining issues.
I.
Standard of Review
We review the evidence most favorably to the Agency which is the prevailing
party, and indulge all legitimate and reasonable inferences to uphold the trial court’s
order. (Mark N. v. Superior Court (1998) 60 Cal. App. 4th 996, 1010, superseded by
24
statute as indicated in Earl L. v. Superior Court (2011) 199 Cal. App. 4th 1490, 1504; In re
Misako R. (1991) 2 Cal. App. 4th 538, 545.) If there is substantial evidence supporting the
judgment, the court’s order must be affirmed. (In re Misako R., at p. 545.) “ ‘Substantial
evidence’ is evidence of ponderable legal significance, evidence that is reasonable,
credible and of solid value. [Citation.]” (Tracy J. v. Superior Court (2012) 202
Cal. App. 4th 1415, 1424 (Tracy J.).) “Inferences may constitute substantial evidence, but
they must be the product of logic and reason. Speculation or conjecture alone is not
substantial evidence.” (Ibid.)
II.
The Trial Court’s Finding Mother Was Provided Adequate Reunification Services Is
Not Supported by Substantial Evidence.
The focus of California’s dependency system during the reunification period is to
“preserve the family whenever possible.” (Tracy J., supra, 202 Cal.App.4th at p. 1424.)
“Until services are terminated, family reunification is the goal and the parent is entitled to
every presumption in favor of returning the child to parental custody. [Citations.] After
reunification services are terminated, the focus is to provide the child with a safe,
permanent home.” (Ibid.)
In arguing her reunification services were deficient, mother directs us to In re K.C.
v. J.P. (2012) 212 Cal. App. 4th 323 (In re K.C.), and contends her mental illness should
have been the Agency’s starting point for specifically tailored reunification services. We
agree.
In re K.C. sets out the basic standard an agency must meet when providing
reunification services to any parent. It must make a good faith effort to provide
reasonable services responsive to the unique needs of each family, and the plan must be
“ ‘ “specifically tailored to fit the circumstances of each family” ’ ” and “ ‘ “designed to
eliminate those conditions which led to the juvenile court’s jurisdictional finding.” ’ ” (In
re K.C., supra, 212 Cal.App.4th at p. 329.) Specifically, the record must show it
identified the problems leading to the loss of custody, offered services designed to
remedy those problems, maintained reasonable contact with the parents during the
25
duration of the service plan, and made reasonable efforts to assist the parents when
compliance is difficult. (Id. at pp. 329–330.) The adequacy of the plan and the agency’s
efforts are judged according to the specific circumstances of each case. (Id. at p. 329.)
And “ ‘[t]he effort must be made to provide reasonable reunification services in spite of
difficulties in doing so or the prospects of success.’ ” (Ibid.)
As made clear by both In re K.C. and the authorities it discusses, when a parent or
guardian has a mental illness or a developmental disability, their condition must be the
“starting point” for a family reunification plan which should be tailored to accommodate
their unique needs. (See In re K.C., supra, 212 Cal.App.4th at pp. 332–333, discussing In
re Jamie M. (1982) 134 Cal. App. 3d 530, 540; In re Elizabeth R. (1995) 35 Cal. App. 4th
1774, 1790; Tracy J., supra, 202 Cal.App.4th at pp. 1425–1426; In re Victoria M. (1989)
207 Cal. App. 3d 1317, 1329–1330.)
So, for example, in In re K.C., a father’s case plan expressed concern he suffered
from mental illness and directed him to undergo a psychological evaluation, the results of
which identified certain psychological conditions that impaired his ability to parent. (In
re K.C., supra, 212 Cal.App.4th at pp. 326, 330.) But the evaluation recommended
offering reunification services, including a pharmacological evaluation to determine the
extent to which the conditions might be helped by medication. (Ibid.) The father
expressed resistance, and didn’t think he needed medication, but ultimately agreed to
cooperate. (Id. at p. 327.) Yet the mental health clinic to which the agency had directed
him for the pharmacological evaluation turned him away, and the agency made no effort
to get the recommended evaluation elsewhere.
In these circumstances, the court found no substantial evidence that reasonable
services had been provided. (In re K.C., supra, 212 Cal.App.4th at p. 325.) The court
reasoned, “[t]he ‘ “problems leading to [his] loss of custody” ’ [citation] all appeared to
stem from his mental health issues. The Department quite properly undertook to identify
those issues. But when it came to addressing them, the Department appeared to delegate
the burden of finding and obtaining suitable services to Father himself—despite the high
26
likelihood that the very issues necessitating treatment would interfere with his ability to
obtain it.” (Id. at p. 330).
Nor was the agency excused by the father’s stated opposition to medication. (In re
K.C., supra, 212 Cal.App.4th at pp. 331–332.) The only evidence was that the father had
resisted initially. (Ibid.) “The Department made no attempt to show that Father would in
fact have refused medication if presented with a choice between taking it and
permanently losing custody of his children.” (Id. at p. 331.) And the father eventually
did try to get the evaluation but was unsuccessful. (Id. at p. 332.) In these circumstances,
the agency “could not pounce upon stale expressions of reluctance as an excuse for its
own inaction.” (Ibid.)
Among the authorities In re K.C. relies upon is In re Jamie M. (1982) 134
Cal. App. 3d 530, which in many ways resembles this case. It involved a mother who had
a chronic schizophrenic illness, suffered from paranoid delusions, and turned herself and
her children into police to protect them, apparently when she went off her medication.
(Id. at pp. 536–537, 543.) In examining whether the court had a basis to remove the
children from her custody, the court examined the complex, often ill-defined and poorly
understood nature of schizophrenia, which is a category that encompasses a wide group
of disorders and defies generalization (or even professional consensus) as to its causes,
diagnosis, treatment and a patient’s prospects for relapse, since every case is unique. (Id.
at pp. 537–538.) “Because it may represent a collection of parts from several types of
emotional disturbances rather than a single ‘disease,’ labeling some patients as
schizophrenic may be equivalent to saying an accident victim with a concussion,
fractured spine, broken ribs and a collapsed lung is ‘severely ill.’” (Id. at p. 538).
For these reasons, the court in In re Jamie M. stressed that the mere fact the
mother was labeled a schizophrenic “really tells us very little about her behavior and its
affect [sic] on her children” and asked, “How then is a court to use this crucial and yet
nebulous diagnosis in ruling on the proper disposition to be made of her children?” (In re
Jamie M., supra, 134 Cal.App.3d at p. 540.) And its answer sheds a great deal of light on
what went wrong in this case: “It would appear that a diagnosis of schizophrenia should
27
be the court’s starting point, not its conclusion. Rather than mandating a specific
disposition because the mother is schizophrenic, the diagnosis should lead to an in-depth
examination of her psychiatric history, her present condition, her previous response to
drug therapy, and the potential for future therapy with a focus on what affect her
behavior has had, and will have, on her children. [¶] Harm to the child cannot be
presumed from the mere fact of mental illness of the parent . . . . The proper basis for a
ruling is expert testimony giving specific examples of the manner in which the mother’s
behavior has and will adversely affect the child or jeopardize the child’s safety.” (Id. at
p. 540, italics added.)
In this case, the problem that led to S.L.’s detention similarly was mother’s mental
illness, and more specifically her difficulty remaining medicated which precipitated her
relapse. So, taking mother’s mental illness as a “starting point” (In re K.C., supra,
212 Cal.App.4th at p. 333; In re Elizabeth R., supra, 35 Cal.App.4th at p. 1790; In re
Jamie M., supra, 134 Cal.App.3d at p. 540), the Agency was required, first, to identify
mother’s mental health issues and provide services designed to enable her to obtain
appropriate medication and treatment that would allow her to safely parent S.L. (see In re
K.C., at p. 330) and also, second, to provide services designed to help her stay on her
medication. It did not meet its burden to show that it took either step.
First, with respect to identifying mother’s mental health issues and needs, nothing
like the careful evaluation of mother’s mental illness called for by In re Jamie M. was
done by the Agency in this case, nor did the Agency even secure a psychological
evaluation as part of a case plan as was done in In re K.C.
In some ways, this record is so wanting on the subject of mother’s mental illness it
defies analysis. The Agency secured two mental health evaluations early on, but not as
part of mother’s case plan. And even had the Agency sought that professional input in
order to address mother’s mental health needs as part of a reunification plan, that input
still could not constitute substantial evidence that the Agency provided reasonable
reunification services. Leaving aside that the record contains no information about the
full identity, qualifications or licensing of either doctor, their conclusions are not
28
described in the Agency’s 12-page report other than three vague comments—opining
generally about the severity of mother’s symptoms and the potential danger she posed to
S.L., her state of “denial” about her condition, and noting favorably that “she appears to
be medication compliant but needs to remain so.” So it is impossible to ascertain what, if
anything, these examining psychologists might have concluded about what mother’s
condition is, what her treatment needs are and her prospects for reunifying successfully
with her son. Substantial evidence isn’t synonymous with “any” evidence. (Roddenberry
v. Roddenberry (1996) 44 Cal. App. 4th 634, 651.) And as far as we can tell, no therapist,
clinician or mental health professional ever testified at any of the hearings in this case,
including the critical six-month review hearing at which the trial court terminated
reunification services.12
Mother’s mental illness appears in this case to be so vaguely and inconsistently
diagnosed, it appears she herself was the most well-informed of anyone. The petition
alleged she “suffers from bipolar with persistent delusions along with command auditory
hallucinations.” The detention report said the hospital at one point had “narrowed down
her diagnosis to Mood Disorder but they are not sure which one.” According to the
disposition report, mother reported that she had “OCD, bipolar, anxiety, depression, and
schizophrenia.” Mother testified she wasn’t bipolar but schizophrenic, and told that to
the hospital upon her discharge at the beginning of the case. Whatever her precise
medical condition, there is no dispute mother suffered homicidal hallucinations. But we
fail to see how the Agency could discharge its obligation to try to reunify mother with her
12
We also note that even if the Agency had made a more complete record of Dr.
Roy’s and Dr. Morell’s findings, it could not have supported a finding that mother still
posed a risk to S.L. by the time of the six-month review hearing some months later. “[A]
psychologist’s initial assessment (completed before the parent has had the opportunity to
meaningfully participate in reunification services) does not constitute substantial
evidence of current detriment to the child. . . . The evidence must be viewed in light of
the disabled parent’s response to services and demonstrated ability to safely care for the
child, despite that parent’s labeled diagnosis, initial prognosis or eligibility for support
services.” (Tracy J., supra, 202 Cal.App.4th at pp. 1424–1425.)
29
son, and provide reunification services appropriately tailored to her needs, without a clear
diagnosis of her mental illness secured through an evaluation as part of a case plan.13
Compounding the problem, the parents’ social worker, Ward, had unsubstantiated
suspicions during the reunification period that mother had stopped taking her medication,
but failed to ascertain whether this could be verified through a blood test.14 And she
admitted she did not even know if mother was on the right medication.15 She also
admitted that if a doctor told her mother was on the wrong medication her opinion
“might” change, and yet there is no indication Ward ever sought to find out. Asked
whether mother’s behavioral changes could be due to her being on the wrong medication,
she candidly admitted total ignorance: “It could be. Like I said, that’s not my expertise.”
Ward’s lax approach to understanding mother’s mental illness and her treatment needs
rivals the social worker in In re K.C., who gave up after an initial mental health
assessment and dispensed with a recommended pharmacological evaluation.16
Mother also cites In re Daniel G. (1994) 25 Cal. App. 4th 1205, in which one
agency’s efforts to provide reunification services to a mentally disabled parent suffering
13
A parent is “not required to complain about the lack of reunification services as
a prerequisite to the department fulfilling its statutory obligations.” (Mark N. v. Superior
Court, supra, 60 Cal.App.4th at p. 1014.) Even so, we note that mother testified at the
six-month review hearing she didn’t agree with the two court-ordered evaluations and
requested additional psychological examinations.
14
Ward testified she raised her concerns with mother’s social worker, Kays, whom
Ward described as “the go-between” between the Agency and mother’s psychiatrist, Dr.
Sharman. According to Ward, Kays “said she didn’t know, but she would try to find out
if they’ve done any lab work. And the answer was that they have not. And so we don’t
know. We don’t know if she’s been taking her meds.” Although mother didn’t know if
her current medication would show up in a blood test, she testified that her other
medication had, she offered to take a blood test for the court, and the Agency introduced
no evidence that a blood test would be ineffectual.
15
She testified, “I’m not a medical professional, and I could be wrong. But I don’t
know if she’s taking her medication or if it’s even the right medication for her.”
16
We also note Ward’s opinion that mother might have stopped taking her
medication was conjectural, and does not constitute substantial evidence that mother had
done so. (See Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 651.)
30
from schizophrenia were called a “disgrace.” (Id. at p. 1216.) Although the mother in
that case “appear[ed] to have serious emotional problems and realistically she may never
be able to properly care for her son,” the court criticized the agency in part because the
social worker “had no idea whether [mother] was progressing toward an independent
living situation” and “never asked [mother’s] psychiatrist whether he believed [mother]
would ever reach the point where she could care for [her son] and, if so, when.” (Id. at p.
1216.) We see similar deficiencies in this case.
Even S.L.’s lawyer expressed concern that mother had not received adequate
services, because “she hasn’t been sent back to the doctor by the instruction of the social
worker to say, you know, you’ve got—you’ve got an attitude issue here that maybe
reflects the medication you’re taking.”
Just as expert opinion is required to determine whether a child can safely remain in
the custody of a parent suffering from schizophrenia (In re Jamie M., supra, 134
Cal.App.3d at p. 540), the input of professionals is necessary for an agency to
appropriately tailor reunification services to such a parent. The Agency here failed to
show that it consulted with, and provided mother with access to, mental health
professionals who diagnosed and prescribed her appropriate medication that would
control her hallucinations and enable her to safely parent S.L. Nor did the Agency
demonstrate that it consulted medical experts about the degree to which mother would
pose a risk to her son, if any, if she remained medication compliant, and whether given
mother’s diagnosis she could be expected to remain on her medication.
Despite these open questions about mother’s mental health needs, the trial court
nonetheless found mother had made progress. It observed, “there’s some good things to
be said and, you know, she’s on her meds now. And she’s doing, apparently, better,
although we did see her while she was being questioned starting to go off . . . .” But the
court appears to have judged her based on whether her mental illness had been cured, not
effectively managed: “So, you know, the point is there’s some ups and downs in this—
her mental health. And somebody who has been diagnosed with schizophrenia, hearing
voices and telling the social worker that she might murder the kid, which, you know, that
31
doesn’t go away in six months. It doesn’t go away with two weeks of meds.” (Italics
added.) Even still, the court had no evidentiary basis to judge whether mother’s mental
illness could “go away” or be managed within six months or otherwise, because there is
no competent evidence from any medical professional whatsoever on the subject.
The second major difficulty with the Agency’s reunification efforts, even if the
Agency had demonstrated it properly identified mother’s mental health issues and
medication needs, is that the record does not show the Agency made any effort to
ascertain how mother could better manage her medications, nor did it provide services
that could help enable her and father to do so. As we have noted, the immediate problem
that led to S.L.’s removal from his parents’ custody (see § 366.21, subd. (e); In re K.C.,
supra, 212 Cal.App.4th at p. 329), was that mother was having problems staying on her
medication, and we are required to indulge the inference that this difficulty was the result
of her having overdosed without father knowing. The Agency was aware of this from the
beginning, citing her doubling up on medication in the petition. Yet there is no evidence
any of the services the Agency provided either parent were specifically designed to aid
either one of them in improving their ability to ensure she took her medication as
prescribed. A standard package of parenting, anger management and support-network
programs, and even in mother’s case continued treatment by her therapist and tele-
psychiatrist, are no substitute for services specifically tailored to help this family devise
carefully considered improvements to the safety measures that proved ineffective after
the first case.17 As stated in the authority cited to us by the Agency, its obligation to
17
The record contains few specifics about the Safety Organized Practice program,
but it does not appear the program was designed to help these parents more effectively
manage and monitor mother’s medication; and if it was so intended, the Agency did not
meet its burden of so showing. According to the Agency’s six-month review report, the
SOP program was intended merely to help each parent “develop a positive support
system that includes friends and family” by helping them identify at least two people they
could turn to for help when they became “overwhelmed or stressed” in order to receive
“encouragement, objective feedback, and help in accessing resources.” In father’s words,
its purpose was to help them build a “safety net” or “support system.” And Ward
testified only that SOP meetings “can be very emotional. They’re very draining for many
32
provide reasonable services encompasses a duty to “offer[] more intensive rehabilitation
services where others have failed.” (In re Riva M. (1991) 235 Cal. App. 3d 403, 414.)
One might expect at least a consultation with a mental health professional on the subject.
Yet there is no indication the Agency took any steps to secure services to help evaluate
whether a better system for monitoring mother’s medications could be implemented, such
as with the assistance of trained medical professionals if need be.18
In closing argument, the Agency’s counsel tacitly conceded this was important.
But rather than explain how the Agency met its duty to try to help, he blamed the parents:
“There’s an argument that they have in a perfunctory sort of way complied with their
case plan. But 366.21[, subdivision] (e) is not asking for substantial compliance with the
case plan; it’s asking for progress on the case plan. It’s asking for progress toward
reunification. [¶] And we are in the exact same situation we were back before this case
was filed, where mother is more or less okay when she’s on her meds, but there isn’t a
safety network in place to prevent her from going off her meds or just checking out and
going to a hospital and leaving the kid with dad.” (Italics added.)
The Agency’s argument to this court consists of a single sentence: that
reunification services were reasonable and adequately tailored because the Agency
“identified mental health as mother’s primary area of need and arranged weekly therapy
and monthly tele-psychiatric sessions for mother.” We disagree. This record raises far
more questions than it supplies answers about mother’s mental health condition, her
medication needs and the measures that might be appropriate to help ensure her
of us who are involved. It’s a way to get to the core of the problem quickly. And then to
rebuild.” She also testified that “One of the questions is, what are your worries?”
18
From all we can tell, mother took it upon herself to attempt to solve this
difficulty, even though the Agency’s duty to provide reunification services could not be
delegated. (In re K.C., supra, 212 Cal.App.4th at p. 330; In re Monica C. (1995) 31
Cal. App. 4th 296, 307–308.) She testified that after she ran out of medications and
experienced the relapse which precipitated this case, her own mother became involved in
monitoring her medications as an additional safety measure, and there is no evidence
mother stopped taking her medication since then, other than the Agency’s unverified
speculation that we have already described.
33
medication compliance. We cannot say in these circumstances the Agency met its burden
to show it offered or provided mother adequate reunification services. The court
therefore had no discretion to set a section 366.26 hearing, and was required to continue
the case to the 12-month permanency hearing. (See § 366.21, subd. (e); Tracy J. v.
Superior Court (2012) 202 Cal. App. 4th 1415, 1424.)
IV.
The Trial Court’s Finding Father Was Provided Adequate Reunification Services Is
Not Supported by Substantial Evidence.
Much of what we have said with respect to the shortcomings of mother’s
reunification services applies equally to father. The petition alleged, in effect, he was in
denial about the gravity of her mental illness. And, early on, it was brought to the
Agency’s attention father wasn’t sufficiently monitoring her medications, as was
apparently required by their previous family maintenance plan, which contributed to her
disturbing relapse. However, as we have explained, it does not appear from this record
the Agency offered or provided anything specifically targeted at helping these parents
devise a more reliable means of making sure mother remained on her medication.
We also are troubled by the Agency’s response to father’s dismissiveness about
mother’s mental illness or the possible danger she posed to their son. And here, we are
cognizant that “ ‘A “mechanical approach” to a reunification plan is not what the
Legislature intended: “such a plan must be appropriate for each family and be based on
the unique facts relating to that family.” [Citations.] The effort must be made to provide
suitable services, in spite of the difficulties of doing so or the prospects of success.’ ” (In
re Brittany S. (1993) 17 Cal. App. 4th 1399, 1406–1407, quoting In re Dino E. (1992)
6 Cal. App. 4th 1768, 1777.) We think the only reasonable inference to be drawn from the
evidence, viewed in light of this entire record, is father thought mother was safe as long
as she stayed on her medication, and based upon the evidence adduced at the six-month
hearing, the trial court apparently agreed (“She appears to be lucid. She appears to be
more in the moment. . . . She has it together now”). But even if that were not so, it was
at least incumbent on the Agency to seek out and offer services that could help father
34
better understand and appreciate the gravity of the risk mother posed, through means such
as individualized therapy, consultations with mother’s own treating mental health team,
or some other educational avenue. Without evidence of such services, we cannot say the
Agency met its burden to show it offered and provided him reunification services
“designed to aid [him] . . . in overcoming the problems that led to the initial removal and
the continued custody” of his child. (§ 366.21, subd. (e).)
We also are concerned that the first judge who presided over the detention hearing
suggested a psychological evaluation of father, and ordered “mental health service and
treatment” without specifying either parent, yet there is no evidence father received a
mental health evaluation thereafter or that the Agency sought to obtain one. (Cf. In re
K.C., supra, 212 Cal.App.4th at p. 325.) And, although we decline to reverse on this
basis, we are equally concerned by the minimal amount of visitation ordered.19
Finally, there was of course the potential for father to single-parent S.L. by
permanently separating from mother, which both mother and father testified they would
be willing to accept. And father tells us in his brief, “That is the hardest decision I have
ever had to make . . . .” Here again, however, there is no substantial evidence father
19
No party has briefed the question whether S.L.’s parents should have been
permitted more visitation than what appears to be the court’s required five-hour
minimum. We note, however, that both parents testified they asked for more; and in their
petitions they each ask this court to order them visitation. The judge who presided over
the case at the detention hearing, the second of three, “expects maximum visitation for
the father” but puzzlingly ordered only the court’s five-hour minimum for both parents.
“Visitation is an essential component of a reunification plan.” (Tracy J., supra,
202 Cal.App.4th at p. 1426.) It has been held that a mere four hours of supervised
weekly visitation is unreasonable in the absence of evidence the parents’ behavior has
jeopardized or will jeopardize the child’s safety. (Id. at p. 1427.) And when an agency
limits visitation in the absence of such evidence, “it unreasonably forecloses family
reunification on the basis of the parents’ labeled diagnoses, and does not constitute
reasonable services.” (Ibid.) Here, we believe the same is true of the amount of
visitation permitted both parents in this case. We encourage the trial court on remand to
reconsider and increase these parents’ visitation to permit them the maximum visitation
allowable, unless it finds either parent will physically endanger S.L. As to that,
moreover, the trial court found father poses no such danger; therefore, unless
circumstances have changed, there is no basis not to order greater visitation for father.
35
received support from the Agency to help him pursue that as a realistic option as an
alternative, if mother’s mental illness could not be safely and appropriately managed.
The subject was discussed during the reunification period but it is unclear to what degree.
And we recognize his relationship with mother was on-again, off-again, which appears to
have been their social worker’s reason for not pursuing the matter further. Likewise, the
trial court at the six-month review hearing was bothered by father’s statements at the
outset of the case, in the March 6, 2015 disposition report, indicating he didn’t want to
parent S.L. alone. But it does not appear that either the Agency or the court ever put the
option forward to father on pain of losing custody of his son (cf. In re K.C., supra,
212 Cal.App.4th at p. 331), nor offered him services designed to help him attain that goal,
such as mental health counseling that might assist him to separate from mother if need be.
(Cf. In re Monica C., supra, 31 Cal.App.4th at p. 310 [reunification services must
“consider the possible merit of intermediate solutions which preserve some contact
between parent and child”].) Moreover, “[a] forecast of failure could not provide an
excuse for refusing to try.” (In re K.C., supra, 212 Cal.App.4th at p.332.)
We need not and do not decide whether father made sufficient progress toward
reunifying with S.L. to justify continued reunification services for another six months.
We note our concern, however, that the Agency’s resistance to reunifying S.L. with his
father alone stemmed largely from its criticisms of father’s “inactive” parenting style, as
demonstrated by the social worker’s testimony we have already described. The goal of
juvenile dependency law is not to impose a state-mandated philosophy of parenting. (See
In re Jasmine G. (2000) 82 Cal. App. 4th 282, 290; In re Paul E. (1995) 39 Cal. App. 4th
996, 1005; § 300 [statement of legislative intent].) Minor criticisms of this sort are not
substantial evidence S.L. could not be safely cared for by his father. (See In re Jasmine
G., at p. 293.) They are “trivial to the point of being pretextual.” (In re Paul E., at p.
36
1005.) Moreover, the Agency’s criticisms of father bear no connection to the reason S.L.
was removed from his custody, which was his failure to protect S.L. from mother.20
In sum, we cannot say there is substantial evidence father was offered and
provided reasonable reunification services either. The court erred in terminating his
reunification services and declining to continue the case for another six months. (See
§ 366.21, subd. (e).)
IV.
The Parties’ Remaining Contentions
We are mindful of the needs of a young child who has not once but twice been
removed from his parents’ custody. That circumstance weighed heavily on the trial court
as well. But the Legislature did not “intend[ ] a speedy resolution of the case to override
all other concerns including ‘the preservation of the family whenever possible.’ ” (In re
Daniel G., supra, 25 Cal.App.4th at p. 1214.)
Given our determination that neither parent was offered or provided reasonable
services, it is unnecessary to decide whether there is substantial evidence that they “failed
to participate regularly and make substantive progress” in their respective case plans, and
we decline to address that issue. (§ 366.21, subd. (e).) For similar reasons, it also is
unnecessary to decide mother’s related contention, framed as a challenge to the
sufficiency of the evidence, that the trial court lacked discretion to set a permanency
hearing because there was a substantial probability that her son may be safely returned
within another six months. (§ 366.21, subd. (e).)
We do, however, note the unfortunate theme that emerges from this record, which
is a breakdown in the parents’ relationship with their social worker after she expressed
20
It also appears that some of the Agency’s criticisms of father’s “inactive”
parenting may have resulted from limitations arising from father’s chronic back pain.
Yet the state has no power to remove a child from the custody of a physically disabled
parent unless the parent’s abilities are compromised to such an extent that the child is at
substantial risk of harm. (In re Tyler R. (2015) 241 Cal. App. 4th 1250, 1265.) The
Legislature has declared, “a physical disability . . . is no bar to the raising of happy and
well-adjusted children.” (§ 300 [statement of intent].)
37
concern as to whether they truly want to regain custody of their son. It is apparent to this
court that they do, reflected among other ways by the fact of these petitions.
Nevertheless, we do not condone mother’s angry outbursts in the SOP meetings that
Ward described. Nor do we believe Ward’s candor justified mother and father in
declining to participate further in those meetings, albeit recognizing they sought to enlist
the help of counsel. Both parents expressed a willingness to set aside their past
difference with Ward to work cooperatively with her if reunification services were
continued. We encourage them to do so. Continued acrimony and distrust is not in
anyone’s interest, not the least a young child who has lived all but several months of his
precious first three years under the supervision of the courts of the State of California.
DISPOSITION
Let a peremptory writ of mandate issue, directing respondent court to (1) vacate its
finding reasonable services were offered or provided to the parents; (2) vacate its
September 28, 2015 order terminating reunification services and setting a permanency
planning hearing under Welfare and Institutions Code section 366.26; and (3) order the
Agency to provide further reunification services to the parents consistent with the views
expressed in this opinion. We assume that on remand the court will reexamine the
parents’ visitation schedule in light of our directive to grant additional reunification
services.
Our decision is final as to this court immediately. (Cal. Rules of Ct., rule 8.490,
subd. (b)(2)(A).)
38
STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
39
Trial Court: Del Norte County Superior Court
Trial Judge: Hon. Leonard J. LaCasse
Counsel:
Law Offices of Jennifer Savoy and Jennifer Savoy for Petitioner Patricia W.
James Fallman for Petitioner J.T.
No appearance for Respondent.
Office of the County Counsel, Elizabeth Cable, County Counsel, Joel Campbell-Blair,
Deputy County Counsel
40