In re A.O.

Filed 11/13/15; second of two modifications—first modif. and partial pub. order and unmodified opinion attached
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.O., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E062111
Plaintiff and Respondent, (Super.Ct.No. INJ1300355)
v. ORDER MODIFYING OPINION
AND GRANTING PARTIAL
M.O., PUBLICATION
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
IT IS ORDERED that the opinion filed in this matter on October 14, 2015 is
modified as follows:
Delete the first sentence in the second paragraph on page 21 of Part II.1. reading,
Rule 5.590(a) states that “after making its disposition order,” the court “must
advise, orally or in writing,” the child, parent, or guardian of his or her right to
appeal from the court order. (Italics added.)
It shall be replaced with the following sentence:
1
Rule 5.590(a) states that “after making its disposition order,” the court “must
advise, orally or in writing, the child, if of sufficient age, and, if present, the parent
or guardian of . . . [t]he right of the child, parent, and guardian to appeal from the
court order. . . .” (Italics added.)
IT IS FURTHER ORDERED that certification of the opinion for nonpublication
dated October 14, 2015 is hereby vacated and set aside. On pages 1 and 40 of the
opinion, the words NOT TO BE PUBLISHED IN OFFICIAL REPORTS are replaced
with the words CERTIFIED FOR PARTIAL PUBLICATION and those words on page 1
are followed by insertion of the following footnote:
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I, II.2, II.3, and II.4.
IT IS FURTHER ORDERED that the request for publication of the opinion filed
on October 14, 2015 is GRANTED with the exception of parts I, II.2, II.3, and II.4. The
opinion meets the standard for publication as specified in California Rules of Court, rule
8.1105(c).
2
Except for these modifications, the opinion remains unchanged. These
modifications do not effect a change in judgment.
CERTIFIED FOR PARTIAL PUBLICATION
CODRINGTON
J.
I concur:
MILLER
J.
3
Filed 10/14/15; part. pub. & mod. order 11/12/15 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.O., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E062111
Plaintiff and Respondent, (Super.Ct.No. INJ1300355)
v. OPINION
M.O.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Lawrence P. Best,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part; reversed in
part with directions.
Linda B. Puertas, under appointment by the Court of Appeal, for Defendant and
Appellant.
1
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Anna
M. Marchand, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant M.O. (mother) has unresolved mental health issues that
led to the court finding jurisdiction over her 12-year-old daughter, A.O., under Welfare
and Institutions Code section 300, subdivision (b)1 and removed her from mother’s care.
At the six-month review hearing, the court found that returning A.O. to mother would be
detrimental to A.O. and that the Riverside County Department of Public Social Services
(DPSS) had provided adequate reunification services. At the twelve-month review
hearing, the court terminated reunification services and ordered that A.O. be placed in a
Planned Permanent Living Arrangement.
Mother appeals the orders from the six- and twelve-month review hearings, and,
citing the court’s failure to advise her of her right to appeal after the disposition hearing,
she also appeals the jurisdictional findings and dispositional order. We affirm
jurisdiction and disposition but reverse the court’s findings at the six- and twelve-month
review hearings that DPSS had provided reasonable reunification services.
1 All further statutory references are to the Welfare and Institutions Code.
2
I
FACTUAL AND PROCEDURAL BACKGROUND
This case involves A.O., a minor who was 12 years old at the time of detention but
is now 14, and her mother, who suffers from bi-polar disorder and exhibits paranoid and
aggressive tendencies. A.O.’s biological father has never been a part of her life.2 Mother
raised A.O. by herself and has been A.O.’s sole provider and caregiver for her entire life.
Mother has an adult daughter, M.H., from a 22-year marriage that ended in 1995. That
same year, mother was hospitalized under section 5150,3 diagnosed with bi-polar
disorder, and prescribed psychotropic medication. Mother stopped taking her medication
after a few days because it was “not necessary.” A.O. was born six years later, in 2001.
It is undisputed that mother has never intentionally or physically harmed A.O., and
that mother and daughter love each other very much and share a strong emotional bond.
At every step of the proceedings below, mother and A.O. persisted in wanting to live
together and in failing to see why they should be apart. Nevertheless, mother’s mental
health issues impede her ability to safely parent A.O., and she has been unable to access
psychotropic medication.
2
Despite the Department’s attempts to locate him, his whereabouts remained
unknown throughout the proceeding.
3 Section 5150 allows for the involuntary hospitalization of a person who “as a
result of a mental health disorder, is a danger to others, or to himself or herself.” (§ 5150,
subd. (a).)
3
1. The Petition and Detention
On August 4, 2013, DPSS received an anonymous referral from the Riverside
County Child Abuse Hotline expressing concerns about mother. According to the
referral, the police had responded to mother’s home because she was acting irrational and
paranoid. Mother told the police that she believed there were child molesters in the
neighborhood.
On August 7, 2013, a DPSS social worker arrived at mother’s house to interview
her regarding this incident. The social worker found mother’s behavior to be paranoid,
erratic, and strange. Mother made vague references to child molesters in her
neighborhood, home invasions, and police investigations about inappropriate content that
was planted in her computer and A.O.’s cell phone. At one point during the interview
she said, “Shhh. I’m an actor . . . There is a sting operation.”
Mother reported that in 1995, after her divorce, she had been hospitalized and
diagnosed with bi-polar disorder and that she had been prescribed Haldol but “almost
died” when she took it. She stated that she does not take medication and that there had
not been any mental health concerns since 1995. She admitted to using marijuana with a
friend three months prior, but stated that A.O. had not been present. She agreed to a drug
test and tested negative for controlled substances.
The social worker also interviewed A.O., who was dressed appropriately and did
not have any visible marks or bruises. A.O. denied any sexual abuse and told the social
4
worker that mother did not use drugs or alcohol. She felt safe with mother and wanted to
continue living with her.
When asked about mother’s recent behavior, A.O. said that mother had been
“acting crazy this month,” and that she did not like it. According to A.O., mother had
contacted the police because she believed there were child molesters in the neighborhood.
Mother also believed that someone was planting inappropriate content on their computers
and phones.
Mother attended a team decision meeting on August 21, 2013 and agreed to
participate in a psychological evaluation by August 28. On September 12, mother left a
voicemail for the social worker saying, “I’ve been watching the streets. I’m sure you
[are] keeping a close eye, the family and the villagers. I can smell it.”
On September 25, 2013, DPSS received a second referral through the hotline
alleging that A.O. had not been attending school since the academic year began on
September 3. The social worker returned to mother’s house on October 1. When asked
whether she had completed a psychological evaluation, mother said she had not because
she did not have insurance. She also told the social worker that she had completed the
evaluation and that it was “none of [her] business.” Throughout the interview, mother
made comments about child molesters and about A.O. being cyber bullied. She admitted
that she had been keeping A.O. out of school because she was “scared for [A.O.]’s
safety” and felt it was unsafe for her to be in public. When asked if A.O. was on
independent study, mother said yes and pointed to the author’s name on a text book. The
5
social worker asked who the independent study was through and mother again pointed to
the author’s name. Mother called the social worker “disgusting” and ended the interview.
A.O.’s middle school had no knowledge of A.O. receiving independent studies.
The school had also sent a health aid to mother’s home because A.O. had not been
attending school.
On October 2, 2013, mother called the social worker and told her that she and
A.O. were being harassed when they walked down the street. She said that “people are
breaking stuff around me to intimidate us . . . sirens, dropping things trying to make me
fearful. I’m not hiding.” She also said that A.O. is being “cyber bullied” and called a
“whore.”
The next day, DPSS arrived at mother’s home to take A.O. into protective custody
and place her in a foster home. Mother became aggressive towards the social worker.
She asked why A.O. was being “arrested,” and remarked that A.O. is “not even
Mexican.” Mother yelled in the social worker’s face and the officers had to ask her to
step away from the social worker several times. Mother swore at the social worker as she
drove away with A.O. The officers had to assist mother in stepping away from the car.
A.O. began attending school shortly after she was placed in foster care. She told
the social worker that she had not been attending school because mother is “paranoid” as
a result of several hang-up phone calls. She also reported that mother had been unable to
take her to and from school because she did not have a car. Mother believed someone
had “super glued” the car’s door locks and was sending ransom notes about the car.
6
Since she had not been attending school, A.O. had been spending 10 minutes to an hour
each day completing old workbooks from the fifth grade. She reported that she was no
longer allowed to go to friends’ homes because of mother’s safety concerns.
On October 7, 2013, DPSS filed the dependency petition, alleging that A.O. fell
under the court’s section 300, subdivision (b) jurisdiction because mother’s conduct
placed A.O. at a substantial risk of serious physical harm or illness. Specifically, DPSS
alleged that mother placed A.O. at risk by: (1) failing to address her unresolved health
issues, especially given that she had previously been hospitalized under section 5150 and
diagnosed with bipolar disorder; (2) abusing marijuana; (3) neglecting A.O.’s educational
needs; and (4) refusing to participate in DPSS’s pre-placement preventative services and
obtain a mental health assessment.
The court held the detention hearing on October 9, 2013. Before the hearing,
mother tried to give A.O. breakfast, and when the social worker informed her that food
was not allowed in the court, mother began yelling in the social worker’s face. The social
worker backed away but mother followed her, yelling. The social worker had to call the
court deputy to intervene.
Mother’s testimony at the detention hearing was vague and disjointed, and she
often had to be redirected. She admitted that she had been hospitalized in 1995 and that
she had been prescribed medication. She stated that she was “forced” to take medication
and that she stopped taking it after a few days because it was “not necessary.”
7
Much of mother’s testimony involved her concerns about pedophiles. She
testified that her research had revealed that there were 187 registered child molesters in
her neighborhood. She believed that a father of one of A.O.’s friends was a pedophile
and was “grooming” A.O. for sexual relations. Her reasons for this belief were scattered
and seemed to consist of the fact that A.O. had gone camping with the family, the father
has a “man cave” at the house, and the family has a puppy that “sits under a table for like
six, seven hours.” Mother admitted that A.O. denied experiencing any abuse by the
father.
Mother’s testimony on the topic of A.O.’s schooling was also difficult to follow,
and at times contradictory. She claimed that the cyber bullying issue had stopped and
that A.O. would be going back to school. She said that A.O. had been on independent
studies “on and off” at the beginning of the school year.
Regarding the petition’s allegation that she had not participated in a mental health
assessment, mother stated that she had not been able to see a doctor because she did not
have insurance. She said that the phone numbers for the referrals DPSS had given her at
the team decision meeting were incorrect.
The court found that DPSS had presented prima facie evidence that A.O. fell
under section 300, subdivision (b) and it detained A.O. from mother.
2. Jurisdiction
After the detention hearing, M.H., mother’s adult daughter from her previous
marriage, contacted DPSS. M.H. reported that mother suffers from “severe paranoia”
8
and had been diagnosed with bi-polar disease. M.H. does not maintain a relationship
with mother because she is a “violent person” and refuses to take medication. Back when
M.H.’s parents were still living together, mother had threatened to kill M.H. and was
paranoid that M.H. had been sexually molested. Mother had also tried to run M.H.’s
father over with her car inside a parking structure. After mother had been hospitalized in
1995, M.H. and her father discovered that she had been hiding knives under the sofa
cushions in their house.
The social worker interviewed mother and A.O. again. Mother denied needing
any services and stated that the only counseling her family needed was for A.O., who had
been traumatized by the dependency proceedings.
A.O. told the social worker that her mother needed a “ ‘stress pill’ so she is not
always ‘floppy’ and all over the place.” She reported that at the time she was removed
from mother’s house, they did not have running water. They had been drinking water
from water bottles and showering at a neighbor’s house. The water company was
charging “a whole bunch of money and [mother] gets ticked.”
A.O. also reported that mother has “paranoid trust issues.” Mother had kept her
out of school because she “wanted to be with just me and watching me” and “we didn’t
have a car to get there.” Mother had also recently taken her out of dance classes because
mother believed the dance teacher was “talking to somebody on the internet.” A.O.
stated, “it was weird because they thought my mom couldn’t supervise me.” A.O. had
9
seen mother become physically aggressive with A.O.’s paternal grandmother. The
grandmother told mother that she “need[ed] a doctor” and mother slapped her.
A.O. liked her foster care placement, but was concerned about finding a placement
alternative that would not upset mother. The social worker noted that A.O. was
articulate, well-mannered, and appeared “parentified, as she commonly inquires about her
mother’s [well-being] and behavior.”
In the three months leading up to the jurisdiction hearing, mother’s behavior
during visits and towards the social workers and the foster family was inappropriate and
often aggressive. During visits, mother frequently talked about the case in front of A.O.,
despite constant redirection. For example, she referred to DPSS as “evil” and told A.O.
that she was crying herself to sleep every night because of her removal.
During one visit, A.O. told mother that she had recently spoken with her half sister
M.H. on the telephone. Mother responded, “you know she’s against us . . . you know the
truth, she wanted this to happen.” A.O. and mother cried throughout this entire visit, and
mother refused to leave the room when it ended. Afterwards, A.O. continued to cry and
refused to talk to the social worker. She went into her room and began talking to
imaginary friends.
Mother consistently berated and threatened the supervising DPSS social workers
during visits. One of the social workers stated that she feared for her safety during visits
and requested that they begin taking place in a therapeutic setting.
10
At a hearing on October 31, 2013, mother’s counsel stated that mother wanted to
submit to psychological evaluations and that she was requesting referrals for mental
health care and a medication evaluation. The court appointed Dr. Michael Kania and Dr.
Robert Suiter to conduct mental health evaluations pursuant to section 370. The court
ordered visits to continue, but in a therapeutic setting, due to mother’s inappropriate
behavior during visits.
Dr. Kania evaluated mother on November 22, 2013. He reported that her thought
processes were “extremely tangential and peculiar and it is difficult to keep her on track.”
Mother was also a “poor historian,” and did not understand why A.O. had been removed
from her custody. She did not trust Dr. Kania, and exhibited an “inability to cooperate,”
as well as elements of paranoid thinking and hypomania. Dr. Kania determined that
mother’s disorganized thought process and possible mood disorder were consistent with a
bipolar disorder. He stated that her behavior during the assessment, as well as her
“history of not having running water in her home, not taking her daughter to school,
feeling that someone is ‘grooming’ her daughter and might sexually molest her,” suggest
that she is in need of psychological treatment. He opined that, until mother received
treatment, which “should include at least a psychiatric medication evaluation and ongoing
psychotherapy,” he had “serious questions with regard to [mother’s] ability to care for
and protect her daughter.” He also opined that after mother receives psychological
treatment, “she may become more open to the possibility of receiving support in the
home.”
11
On November 11, 2013, mother went to the foster family’s home while they were
having a garage sale and told them to “Tell [A.O.] Happy Thanksgiving for me.”
On November 25, DPSS referred mother to Indio Mental Health for a medication
evaluation.
On December 2, 2013, security had to intervene and escort mother away after she
pulled out a can of mace and stared at the social worker, saying “[A.O.] I finally got my
mace. Now I can spray someone in the eyes.” A.O. “apologized profusely” for her
mother’s behavior. Later, the social worker received a report that mother had been
driving by the foster home with her windows down and music blaring. A few days later,
mother arrived at a DPSS office and became aggressive towards the social worker.
Mother accused the social worker of discriminating against her because she is Caucasian;
she also called the social worker a “racist,” and a “bigot.”
On December 10, 2013, A.O. reported that she was nervous about visiting with
mother because she could not predict what mother would say or do. She also reported
that she was refraining from being in contact with relatives, including her older half
sister, because she did not think mother would approve.
On December 14, mother drove to her daughter M.H.’s home in Colorado. M.H.
called the police when mother refused to leave the house. Mother drove up and down
M.H.’s driveway honking her horn and flashing her headlights.
On December 23, mother went to DPSS’s office to ask the social worker about the
rules of visitation and became combative when the social worker began to answer her
12
question. On December 30, after her visit was shortened in order to accommodate her
request to change the visit time, mother had to be escorted out of the DPSS office for
making threats against the social worker’s life. Afterward, DPSS personnel noticed that
mother was parked near a liquor store across from DPSS’s facility, smoking cigarettes
and staring at the facility. Fearing for her safety, the social worker called the police. The
police told mother to leave and ended up having to force her to drive away. A.O. was
extremely upset by the incident. She cried and called the social workers “a bunch of
jerks.”
Around this time, the social worker received calls from “various” relatives stating
that mother’s behaviors were escalating. These relatives wished to remain anonymous
because they feared for their safety.
On January 3, 2014, the court held the jurisdiction hearing. The court granted
DPSS’s request to continue the disposition hearing because the report from Dr. Suiter’s
recent evaluation was not completed.
Mother testified that the allegations in DPSS’s Jurisdiction/Disposition report
about her inappropriate behavior during visits were “fabricated.” She also asserted that
her older daughter was lying and that she had not driven to Colorado to harass her. She
denied that she suffers from mental illness and stated that she has not participated in
counseling because it is “not necessary.”
The court sustained the allegations in the petition and found that A.O. was a
dependent of the court under section 300, subdivision (b).
13
3. Disposition
On January 23, 2014, DPSS filed Dr. Suiter’s psychological evaluation. Dr. Suiter
reported that mother believed A.O. had been abducted by a DPSS social worker and that
it was difficult to follow her train of thought. Based on his evaluation, he believed that
mother “could not care for a child at this juncture as she remains psychotic and
hypomanic.” He opined that she “is clearly in need of psychotropic medications which
would most likely include antipsychotic and mood stabilizing medications.” Mother “is
also in need of individual psychotherapy to assist her to cope with her life circumstances
and to assist her with her relapse prevention.” Dr. Suiter stated that “[i]t would be overtly
detrimental to place a child in the care of [mother] at this juncture and that will remain
the case until such time as she is psychiatrically stabilized for a sustained period.”
Also on January 23, DPSS checked the status of its medication evaluation referral
and confirmed that it was still valid. To this point, mother had not participated in a
medication evaluation.
On January 29, 2014, the court conducted the disposition hearing. Mother’s
counsel stated that she was “submitting as to family reunification services . . . If [mother]
is being granted reunification services, she would like to be involved in those decisions.”
Counsel also asked for “immediate referrals for . . . the psychiatric or the mental health
evaluation and the medication evaluation.” A.O. filed a statement with the court, asking
the court to allow her to go home and not to make mother take medication “because she
hasn’t taken it before and she was fine.”
14
A.O.’s counsel stated that she had explained to her that it was “not possible” for
her to go home at that point. The court told A.O. that it understood she wanted to go
home, and that “[e]verybody’s goal is to get you both back together.” The court found
that DPSS had presented clear and convincing evidence that returning A.O. to mother’s
care would be detrimental to A.O. under the circumstances set forth in section 361,
subdivision (c)(1). The court ordered DPSS to provide mother with reunification
services. It cautioned mother to comply with the case plan, which included counseling,
psychotropic medication evaluation and monitoring, and substance abuse testing.
Mother did not file a notice of appeal challenging the court’s jurisdictional
findings or dispositional order.
4. The Six-Month Review Hearing
During the months leading up to this hearing, mother and A.O. did not have many
supervised visits, but they did meet and speak with each other outside of DPSS’s
supervision. A.O. admitted that she had been secretly meeting up with her mother near
school and that mother would give her prepaid cell phones so they could communicate.
The social worker found two of these phones in A.O.’s room. A.O. told her foster mother
and the social worker, “She’s my mother and I want to see her.”
A few weeks later, the foster mother found A.O. in the closet talking on the phone
at 2 a.m. The foster mother phoned the number back and when mother answered, the
foster mother told her not to call her home again.
15
Mother also harassed the foster family. In April 2014, she called the foster
mother’s adult daughter and said, “Look any criminal can get your phone number.” The
daughter told her that she had nothing to do with the case and mother began yelling at
her. Mother called her back several times and left lengthy voice messages, in which she
demonstrated that she knew the names of the foster mother’s grandsons. Mother then
began calling the foster mother’s house and became verbally abusive. Both the foster
mother and her daughter blocked mother’s number to keep her from harassing them and
they reported to the social worker that they were concerned for their safety.
On June 19, 2014, mother went to the Indio Mental Health Clinic for a medication
evaluation. She told the doctor that she was only seeking the evaluation because her
daughter was removed from her custody. She denied having mental health issues and
stated that her 1995 hospitalization was “for no good reason.” The doctor observed that
mother rambled and appeared manic, but he concluded that she did not require
medication.
At some point after disposition, a different social worker began working on the
case. In the Status Review Report, this social worker reported that she had learned of the
medication evaluation outcome on July 8, 2014. She also noted that Dr. Kania and Dr.
Suiter had both opined that mother would benefit from medication. Based on mother’s
lack of progress, she recommended continued removal and an additional six months of
services.
16
In September 2014, mother began attending counseling sessions at Family
Services of the Desert with Dr. Gail Winston. In her report, Dr. Winston stated that
mother “continues to have bizarre behavior, mainly paranoid and hypomanic with rage
toward DPSS who she blames for kidnapping her daughter.” She also stated that mother
“refuses psych medication” and that DPSS’s goals of assisting mother in “developing
coping and parenting skills . . . appear unrealistic at this time.”
At the six-month review hearing on October 6, 2014, mother testified that Dr.
Winston had confused facts because she would sleep during therapy sessions. She
testified that therapy was not helpful and that she had not “learned anything” during
sessions. However, she did testify that she was willing to take medication if it would
help get A.O. back.
The court ordered that A.O. remain out of mother’s care and continued
reunification services for six months. It found that DPSS had provided reasonable
services.
Mother filed a notice of appeal challenging the courts findings and orders at the
six-month review hearing on October 8, 2014.
5. The Twelve-Month Review Hearing
On October 9, 2014, Dr. Winston discharged mother from therapy on the basis that
mother’s mental health issues did not permit her to benefit from therapy or gain insight
into her condition. The therapist stated that “[h]er need is to ventilate and blame [DPSS],
17
its social workers and this therapist.” On October 30, 2014, DPSS referred mother to a
new therapist, whom mother began seeing on November 4, 2014.
The social worker reported that A.O. was adjusting well to her foster care
placement and appeared to have formed a close bond with her foster mother. A.O. was
reaching her developmental milestones, making friends at her new school, and
participating in school and church activities.
The therapist-monitored visits between mother and A.O. during this period went
well. Mother consistently had to be redirected from referring to the case, but she did not
become combative or verbally abusive, and A.O. appeared happy to see her. During
these visits A.O. remained in close physical proximity to mother and expressed that she
missed her. A.O. seemed “fine” and “normal” after each visit.
In the Status Review Report, the social worker recommended that the court
terminate reunification services and place A.O. in a Planned Permanent Living
Arrangement. She opined that A.O. would be at risk of harm if she were returned to
mother’s care because mother had not benefitted from the counseling services provided to
her. She “remind[ed]” the court that two experts had opined that she could not safely
parent A.O. and was in need of medication.
The court held the twelve-month review hearing on January 13, 2015. The social
worker and mother testified. When asked for the basis of her opinion that A.O. would
suffer detriment if returned home, the social worker cited Dr. Kania and Dr. Suiter’s
reports, which “stat[e] that the mother is not able to parent the child . . . until she takes
18
the prescribed medication.” The social worker added, “If she is supposed to take
medication, she is not taking it. . . . There are clients that I do know of that are on
medication and doing very well with their children.” When mother’s counsel reminded
the social worker that mother had participated in a medication evaluation but had been
determined ineligible, the social worker responded that she had assumed the clinic had
not prescribed medication because mother did not want medication. The social worker
admitted that she had not followed up and asked mother about the medication evaluation.
Mother testified that she was enjoying her counseling sessions with the new
therapist. She stated that her new therapist was “very nice,” but did not know how to
assist her except by offering advice on how to get along with people. Mother had
recently stopped going to therapy and she explained that this was only because she had
read the Status Review Report and was under the impression that her services had been
terminated. Mother testified that she would take medication, “would take anything,” if it
meant that A.O. would be returned to her care.
The court found that returning A.O. to mother still posed a substantial risk of
detriment to A.O.’s physical and emotional well-being under section 361, subdivision
(c)(1). The court terminated reunification services, but found that a section 366.26
hearing terminating mother’s parental rights would not be in A.O.’s best interests. It
ordered weekly supervised visits and that A.O. be placed in a Planned Permanent Living
19
Arrangement with the specific goal of placement with a relative. Mother filed a notice of
appeal on January 20, 2015.4
II
ANALYSIS
1. The Merits of Jurisdiction and Disposition Should be Addressed
Mother argues that there was insufficient evidence to support the court’s
jurisdictional findings and its dispositional order removing A.O. from her care. DPSS
asserts that mother forfeited these arguments by failing to file a timely notice of appeal
after the court issued the dispositional order. Mother concedes her appeal is untimely but
asks that we reach the merits of her challenges to those rulings because the trial court
violated rule 5.590(a) of the California Rules of Court (rule 5.590(a)) by failing to inform
her of her right to appeal at the conclusion of the disposition hearing. We are not aware
of any cases addressing the effect of the court’s failure to advise a party of the right to
appeal under rule 5.590(a). However, there are cases that address rule 5.590(b) of the
California Rules of Court (rule 5.590(b)) and the effect of the court’s failure to advise a
party of the writ petition requirements for challenging the setting of a section 366.26
hearing. We find that precedent persuasive here.
4We ordered counsel to address all issues arising from this and the October 8,
2014 notice of appeal in one brief.
20
One of the most fundamental rules of appellate review is that the time for filing a
notice of appeal is jurisdictional. “[O]nce the deadline expires, the appellate court has no
power to entertain the appeal.” (Van Beurden Ins. Services, Inc. v. Customized
Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 56.) “The first appealable
order in a dependency case is the dispositional order. . . . a challenge to the jurisdictional
findings must be raised in an appeal from the dispositional order.” (In re T.W. (2011)
197 Cal. App. 4th 723, 729.) Mother should have filed a notice of appeal of the court’s
jurisdictional and dispositional orders within 60 days of January 29, 2014, the date of the
dispositional order. (Cal. Rules of Court, rule 8.406(a).) It is only in very rare and
“ ‘special circumstances constituting an excuse for failure to [timely appeal]’ ” that an
appellate court may grant review of an appealable order by way of extraordinary writ
after the deadline to appeal has passed. (Mauro B. v. Superior Court (1991) 230
Cal. App. 3d 949, 953, citing Adoption of Alexander S. (1988) 44 Cal. 3d 857, 865.)
Rule 5.590(a) states that “after making its disposition order,” the court “must
advise, orally or in writing,” the child, parent, or guardian of his or her right to appeal
from the court order. (Italics added.) This mandate applies any time a court finds that
dependency jurisdiction under section 300, 601, or 602 is proper. (Rule 5.590(a).)
Similarly, rule 5.590(b) states that when a court orders a section 366.26 hearing, it “must
advise” all parties of the requirements necessary to ensure extraordinary writ review of
the order setting the hearing.
21
In re Cathina W. (1998) 68 Cal. App. 4th 716 held that the juvenile court’s failure
to advise the mother of her writ rights entitled her to obtain appellate review of the merits
of the order setting a section 366.26 hearing, even though the jurisdictional deadline for
filing the notice of intent to file a writ petition had passed. (Id. at pp. 722-724 [applying
a former rule of court requiring advisal].) The court concluded that the absence of the
writ advisement constituted “good cause” for the mother’s failure to file a writ petition.
(Id. at p. 722.) Cases after Cathina W. have continued to provide appellate review to
parties who did not receive the writ advisement from the court. (See, e.g., In re Harmony
B. (2005) 125 Cal. App. 4th 831, 839 [Fourth Dist., Div. Two].)
Based on this precedent, we hold that a court’s failure to provide the appeal
advisement contained in the same rule of court as the writ advisement is a “ ‘special
circumstance[] constituting an excuse for failure to [timely appeal].’ ” (Adoption of
Alexander S., supra, 44 Cal.3d at p. 865.) We will therefore reach the merits of mother’s
challenges to jurisdiction and disposition by treating that portion of her appeal as a
petition for an extraordinary writ.
We direct mother’s attention to the rule that the notice of appeal must specify each
particular order being appealed. (Cal. Rules of Court, rule 8.100(a)(2).) Nowhere in
either of mother’s notices did she specify that she was appealing jurisdictional and
dispositional rulings. In the typical case, this defect would be fatal to her appeal of those
rulings, because the rule is a jurisdictional one. (See, e.g., Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal. App. 4th 212, 240.) However, because we find that
22
there is good cause for mother’s late appeal, if we dismissed her challenge to those
rulings on this ground, we would also grant her the opportunity to correct and re-file her
notice document. In the interests of judicial economy, and because both parties have
already fully briefed the issue of the validity of jurisdiction and disposition, we reach the
merits of the issue without further delay.
DPSS urges us to deny review on the ground that the court was not required to
give the rule 5.590(a) appeal advisement because mother had waived her right to appeal
the jurisdictional and dispositional rulings. DPSS would have us find that this waiver
occurred at the disposition hearing when mother’s counsel stated that mother was
“submitting as to reunification services.” While a parent’s submission “on the
recommendation” of the social services agency can constitute waiver of any challenges to
the court’s order on appeal, mother did no such thing here.
Mother submitted solely on the issue of reunification services, she did not submit
to DPSS’s recommendation that the court assert jurisdiction over A.O. or remove A.O.
from her care. The cases DPSS cites do not support a finding of waiver here because in
those cases the parent submitted on the entirety of the agency’s recommendation and
made no effort to object or offer contradictory evidence to the court. (In re Richard K.
(1994) 25 Cal. App. 4th 580, 583, 589; In re Kevin S. (1996) 41 Cal. App. 4th 882, 886.)
Mother’s submission to the reunification services aspect of DPSS’s recommendation did
not override her vigorous efforts to contest jurisdiction and removal.
23
2. Substantial Evidence Supports Jurisdiction
Mother argues that the evidence was insufficient to support a finding under section
300, subdivision (b) that A.O. was at substantial risk of serious physical harm or illness
as a result of her conduct. We disagree.
Section 300, subdivision (b) provides for jurisdiction when “[t]he child has
suffered, or there is a substantial risk that the child will suffer, serious physical harm or
illness, as a result of the failure or inability of his or her parent or guardian to adequately
supervise or protect the child.” (§ 300, subd. (b)(1).) DPSS must establish by a
preponderance of the evidence that allegations made under section 300 are true. (In re
Matthew S. (1996) 41 Cal. App. 4th 1311, 1318.) We review the jurisdictional findings for
substantial evidence and will affirm if “there is reasonable, credible evidence of solid
value to support them. [Citations.]” (Id. at p. 1319.)
A section 300, subdivision (b) allegation has three elements: (1) neglectful
conduct by the parent in one of the specified forms; (2) causation; and (3) serious
physical harm or illness to the child, or a substantial risk of such harm or illness. (In re
Rocco M. (1991) 1 Cal. App. 4th 814, 820.) In cases like this, where DPSS does not argue
that the child actually suffered serious physical harm or illness as a result of the parent’s
failure to protect, DPSS must show that, at the time of the jurisdictional hearing, the child
is at substantial risk of suffering such harm. (§ 300, subd. (b)(1); In re Jonathan B.
(2015) 235 Cal. App. 4th 115, 119.) In order to prove such a risk, DPSS must demonstrate
a connection between past behavior and a defined risk of future harm, as well as a reason
24
to believe the behavior will continue in the future. (In re Rocco M., supra, 1 Cal.App.4th
at p. 824.)
Here, DPSS presented evidence that mother had exhibited violent behavior
towards family members as a result of her bi-polar disorder in the past, as well as
evidence that mother was currently suffering from the same disorder and exhibiting
violent behavior. According to M.H., as a result of mother’s disorder, she had become
paranoid to the point of hiding knives throughout the house, had threatened to kill her
own daughter, and had attempted to kill her ex-husband. M.H.’s account constitutes
substantial evidence of what could happen if mother’s mental health issues went
untreated. Dr. Kania’s evaluation was substantial evidence that mother was currently
suffering from the same mental health issues that she had suffered from in the past,
namely, bi-polar disorder with manic and paranoid tendencies. Mother’s behavior
towards DPSS employees, the foster family, and her own family leading up to the
jurisdiction hearing was substantial evidence that she was currently exhibiting the same
violent or aggressive behaviors that she had demonstrated in the past.
Additionally, DPSS presented evidence that mother was neglecting A.O.’s needs
by keeping her out of school and failing to maintain water service to the home. This
neglect, on its own, may not be sufficient to warrant jurisdiction under section 300,
25
subdivision (b)5; however, when coupled with the evidence just described, it
demonstrates a connection between mother’s past dangerous conduct and her conduct at
the time of the jurisdiction hearing. We conclude that, based on this record, the court
could readily conclude that there was a likelihood that mother’s dangerous behavior
would continue into the future and create a significant danger of serious physical harm to
A.O.
Mother argues that mental illness alone is not a ground for establishing jurisdiction
over a child and that none of her actions had actually placed A.O. at a substantial risk of
serious physical harm. While it is true that mental illness alone is not sufficient to prove
that a child is at substantial risk of serious physical harm (see, e.g., In re A.G. (2013) 220
Cal. App. 4th 675, 684), this is not a case where DPSS recommended jurisdiction on the
sole basis of a mental illness diagnosis. Mother’s diagnosis was one factor among many
that informed DPSS’s jurisdiction recommendation. For example, the fact that mother
had been involuntarily hospitalized for bi-polar disorder in the past, had been evaluated
by an expert who believed she could not safely parent A.O., and had been refusing to
acknowledge her condition or take medication also informed DPSS’s recommendation.
5 In In re Janet T. (2001) 93 Cal. App. 4th 377, the court held that mother’s failure
to send her children to school for several months, while “very detrimental” to the
children, did not place them at substantial risk of serious physical harm or illness to
warrant jurisdiction under section 300, subdivision (b). (Id. at pp. 388-389.)
26
Additionally, mother overlooks the aggressive way in which she was interacting
with those involved with the dependency proceedings. DPSS presented evidence that she
had become combative toward social workers on multiple occasions, to the point where
the social worker’s feared for their physical safety and summoned security. DPSS also
presented evidence that, before the jurisdiction hearing, mother had driven to Colorado to
harass her daughter M.H., and that family members were concerned for their safety
around mother because her paranoid and aggressive behaviors were escalating.
The cases mother cites to support her position that jurisdiction was improper here
are inapplicable. In In re Matthew S. (1996) 41 Cal. App. 4th 1311, the mother suffered
from the delusion that her 13-year-old son’s penis had been mutilated, and she took her
son to a urologist who found no evidence of any injury. (Id. at p. 1315.) The court
reversed jurisdiction under section 300, subdivision (b) on the ground that her mental
health issues did not place her son at substantial risk of serious physical harm. (Id. at p.
1319.) This case is distinguishable because the mother there had acknowledged her
mental health issues, participated in extensive treatment, took medication as necessary,
and her treating psychologist recommended that the children remain living in her care.
(Id. at pp. 1316-1317.) Here, at the time of the jurisdiction hearing, mother refused
therapy as “unnecessary.”
In re A.G., supra, 220 Cal. App. 4th 675 is also inapplicable because there, even
though the mother suffered undisputed and extreme mental health issues, the children
were not at a substantial risk of serious harm because they had a father who showed
27
“remarkable dedication” to protecting them from her dangerous conduct. (Id. at pp. 680,
684.) In re David M. (2005) 134 Cal. App. 4th 822 is inapplicable because there the social
services agency made allegations based on dated and unverified information which
turned out to fall “a great distance . . . [from] the evidence adduced at the jurisdiction
hearing.” (Id. at p. 825.) The agency alleged that the father suffered from anxiety and
depression and that the mother abused marijuana. (Id. at pp. 825-826.) However, the
evidence presented at the hearing demonstrated that the parents provided a safe, clean
home and that their newborn infant had been born drug free. (Id. at p. 830.)
Here, unlike these cases, there was no other parent that could safely care for A.O.,
and DPSS had presented the evaluation of an expert who opined that mother could not
safely care for A.O. in her current state and without psychotherapy and medication. At
the time of the jurisdiction hearing, mother had not participated in a medication
evaluation despite having a referral from DPSS and she refused therapy as
“unnecessary.” Mother’s focus on the fact that there was no evidence that A.O. had ever
been physically harmed overlooks the real danger that mother was creating for her
daughter. By failing to acknowledge her mental health issues and address them with
medication, mother was continually risking the chance that she would have another
hospitalization incident or exhibit irrational, threatening behavior like she had in the past.
Because we conclude that allegation b-1 is supported by substantial evidence and
warrants jurisdiction under section 300, subdivision (b), we need not address mother’s
arguments concerning the evidence supporting allegations b-2 through b-4. (In re
28
Christopher C. (2010) 182 Cal. App. 4th 73, 83 [“ ‘jurisdiction may rest on a single
ground’ ”].)
3. Substantial Evidence Supports Removal
Mother argues that there was insufficient evidence at the disposition hearing to
support a finding that A.O. would be at substantial risk of harm if returned to her care.
Again, we disagree.
A parent has a fundamental right to care for and have custody of her child. (In re
Marilyn H. (1993) 5 Cal. 4th 295, 306.) Removal is “a last resort, to be considered only
when the child would be in danger if allowed to reside with the parent.” (In re Henry V.
(2004) 119 Cal. App. 4th 522, 525.) Thus, before the court may order a child physically
removed from his or her parent’s custody, it must find, by clear and convincing evidence,
that “[t]here is or would be a substantial danger to the physical health, safety, protection,
or physical or emotional well-being of the minor if the minor were returned home, and
there are no reasonable means by which the minor’s physical health can be protected
without [removal].” (§ 361, subd. (c)(1).)
However, “[t]he parent need not be dangerous and the child need not have been
actually harmed for removal to be appropriate.” (In re Cole C. (2009) 174 Cal. App. 4th
900, 917.) “The focus of the statute is on averting harm to the child. [Citations.] In this
regard, the court may consider the parent’s past conduct as well as present
circumstances.” (Ibid.) We review a court’s dispositional order for substantial evidence.
(In re T.V. 217 Cal. App. 4th 126, 136.)
29
The evidence that supports the court’s jurisdictional finding was also sufficient to
satisfy DPSS’s burden of presenting clear and convincing evidence of the need for
removal. As just explained, mother had been evaluated as incapable of safely parenting
A.O. as a result of her mental health issues, and she was exhibiting aggressive behaviors
to family members and those involved in the dependency proceedings. She saw therapy
as unnecessary, and had not participated in a medication evaluation.
In addition to this evidence, by the time of the disposition hearing, DPSS had also
presented the opinion of the second court-appointed expert. This expert also opined that
mother could not safely parent A.O. In his opinion, placing A.O. in mother’s care would
be “overtly detrimental” to A.O., at least until she began treatment in the form of
psychotropic medication and psychotherapy.
We recognize that mother asked for immediate medication evaluation referrals at
the disposition hearing, but this request was too late to avert a detriment finding.
Moreover, mother did not explain why she had not taken advantage of the medication
evaluation that DPSS had already given her.
In short, the court had before it the opinion of two experts that mother was
currently a danger to her child. At the time of disposition, mother had chosen to focus
her energy on fighting with family members and those involved in A.O.’s care instead of
utilizing the services DPSS had provided to help her treat her mental health issues.
30
Citing In re Jamie M. (1982) 134 Cal. App. 3d 530 (Jamie M.), mother states the
well-established rule that section 361, subsection (c) harm cannot be presumed from the
fact that a parent was diagnosed with a mental illness. In that case, the basis for the
juvenile court’s removal order was that mother had been diagnosed as a schizophrenic.
(Id. at p. 537.) However, the record demonstrated that drug therapy had been “very
effective in controlling [the mother’s] illness,” and that, at the time of the disposition
hearing, she “was rational and coherent [and] . . . was under psychiatric care on
outpatient status and had returned to her drug therapy.” (Ibid.) The court stated, “[r]ather
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.” (Id. at p.
540.) Refusing to “assum[e] that a schizophrenic parent is ipso facto an unfit parent,” the
court held that the mother’s diagnosis was an insufficient ground for removal. (Ibid.)
This case is a far cry from Jamie M. First, the court here had more than a bi-polar
diagnosis before it when it issued the removal order. It had numerous examples of
mother’s aggressive and paranoid behavior, as well as opinions from two experts on the
potential impacts of mother’s diagnosis on her ability to parent. Second, unlike the
mother in In re Jamie M., mother was not taking medication, found therapy unnecessary,
and was frequently less than “rational and coherent.” (Jamie M., supra, 134 Cal.App.3d
at p. 537.) Unlike Jamie M., our record is devoid of evidence as to whether drug therapy
31
would be effective in controlling mother’s mental health issues, due to her historical
resistance to taking medication.
Mother also argues that the court failed to satisfy its obligation to consider
alternatives to removal. She asserts that she would have participated in counseling and
taken medication if A.O. had been returned to her. This argument ignores the purpose of
disposition proceedings, which is to avoid harm to the child. (See, e.g., In re Cole C.,
supra, 174 Cal.App.4th at p. 917.) It would contravene this purpose to identify a risk of
harm to a child and then allow that child to return home, so long as the parent promised
to take steps to alleviate the risk. Mother cannot condition her compliance with her
safety plan on her daughter’s return. Mother was informed of what she could do to make
A.O.’s return more likely, i.e., participate in treatment and take appropriate medication.
She failed to take those steps.
4. DPSS Failed to Provide Reasonable Services After Disposition
Mother argues that she was put in an impossible position during the
reunification period: DPSS based its detriment opinion on the fact that she was not taking
medication, but when she participated in an evaluation, she was denied medication by
DPSS’s referred clinic. After this denial, DPSS did not refer mother to another clinic, but
it continued to opine that she posed a significant risk of harm to A.O. Mother argues that
the court’s reasonable services findings at the six- and twelve-month review hearings
were therefore not supported by substantial evidence. We agree.
32
As a preliminary matter, we reject DPSS’s argument that mother has waived a
challenge to services because she failed to raise the issue with the juvenile court. “A
parent is ‘not required to complain about the lack of reunification services as a
prerequisite to the department fulfilling its statutory obligations.’ ” (Melinda K. v.
Superior Court (2004) 116 Cal. App. 4th 1147, 1157, 1158 [the mother did not forfeit her
lack of reasonable services argument by raising it for the first time on appeal].) Mother
may raise this argument on appeal.
“A finding that reasonable reunification services have been provided must be
made upon clear and convincing evidence.” (In re Alvin R. (2003) 108 Cal. App. 4th 962,
971.) “When a finding that reunification services were adequate is challenged on appeal,
we review it for substantial evidence.” (Ibid.)
“Reunification services implement the law’s strong preference for maintaining
the family relationship if at all possible. Consequently [the department] must make a “ ‘
“good faith effort” ’ ” to provide reasonable services responsive to the unique needs of
each family through a plan that is “ ‘specifically tailored to fit the circumstances of each
family [citation], and . . . designed to eliminate those conditions which led to the juvenile
court’s jurisdictional finding. [Citation.]’ ” (In re Taylor J. (2014) 223 Cal. App. 4th
1446, 1451.) “[A parent’s] difficulty meeting the case plan’s requirements does not
excuse the agency from continuing its effort to bring [the parent] into compliance with
the court’s orders.” (Ibid.)
33
Throughout this case, DPSS’s main concerns with mother’s ability to parent
A.O. have been her refusal to acknowledge her mental health issues and her failure to
undergo treatment to manage the risks those issues pose to A.O. At the time of the six-
and twelve-month review hearings, DPSS had made several attempts to assist mother in
obtaining counseling. Its efforts on that front are commendable. However, when it came
to obtaining a medication evaluation, DPSS gave mother a referral to a clinic, but never
followed up with her once it learned that the clinic had concluded she was ineligible for
medication.
DPSS learned of mother’s inability to obtain medication from its referred clinic
on July 8, 2014. By the time of the six-month hearing three months later, DPSS had not
given mother another referral for a medication evaluation or taken any other steps to help
her obtain medication. By our review of the record, the only step DPSS took before the
six-month hearing was to ask the clinic why it had concluded mother was ineligible for
medication. DPSS did not follow up any further during the time leading up to the twelve-
month review hearing.
While the blame for mother’s failure to obtain medication falls on both mother
and DPSS, mother’s failure was a result of her condition. Her mental health issues
necessitating drug therapy are precisely what interfered with her ability to obtain
medication services.
34
In In re K.C. (2012) 212 Cal. App. 4th 323 (K.C.), a case where the father was
placed in a similar situation to mother’s, the court held that the department had not
provided reasonable services to help the father obtain psychotropic medication. (Id. at p.
334.) The department had alleged that the father “tended to minimize potential hazards
to the children, to resist advice . . . and to mistrust other persons necessarily involved in
their care.” (Id. at p. 326.) A court-appointed expert opined that the father likely
suffered from multiple psychological disorders, including schizophrenia, and that these
conditions interfered with his ability to address the issues causing his children’s removal.
(Id. at pp. 326, 329.) The expert recommended treatment through therapy and
psychotropic medication. (Id. at p. 326.)
When the social worker discussed the possibility of medication with the father,
he responded, “ “ ‘You would have to tie me down to get me to take medication. I don't
believe in the stuff.’ ” ” (K.C., supra, 212 Cal.App.4th at pp. 326-327.) On another
occasion he told the social worker, “ ‘I am happy with my life. I don’t see how
medication would help me. I don't have any problems.’ ” (Id. at p. 327.) Nevertheless,
he agreed to participate in a medication evaluation. (Ibid.) The department referred him
to a public mental health clinic with the advice that he present himself as open to
receiving medication, as opposed to being forced by the department to attend the
evaluation. (Ibid.) After his second unsuccessful attempt to obtain an evaluation at the
clinic, the social worker advised him to bring his therapist to the next evaluation. (Ibid.)
35
On the third attempt, the therapist accompanied him to the clinic, but he was again denied
an evaluation. (Ibid.)
On appeal, the father challenged the juvenile court’s finding that the
department had provided reasonable services. (K.C., supra, 212 Cal.App.4th at p. 329.)
The department cited the father’s unwillingness to cooperate with his safety plan and his
inability to acknowledge his mental health issues. (Id. at p. 330.)
The court rejected the department’s argument. It stated that had the father
refused to submit to a medication evaluation or refused to take medication that had been
prescribed to him, “his refusal would presumably have sustained a finding that reasonable
services were provided.” (Id. at p. 330.) However, because he was open to obtaining a
medication evaluation, the department was required to make an “effort . . . to provide
reasonable reunification services in spite of difficulties in doing so or the prospects of
success.” (Id. at p. 329.) The court found that, instead of making that effort, the
department had “delegate[d] the burden of finding and obtaining suitable services to [the
father]—despite the high likelihood that the very issues necessitating treatment would
interfere with his ability to obtain it.” (Id. at p. 330, italics added.) It concluded that the
department’s “failure to consider other service providers when the public clinic declined
to provide the needed evaluation” was unjustified. (Id. at p. 331.)
In rejecting the department’s argument that the medication evaluation was
“futile,” due to “[the father’s] stated opposition to psychotropic medications,” the court
reasoned that not wanting to take medication and not being willing to do so “are two
36
different things.” (K.C., supra, 212 Cal.App.4th at p. 331.) “A person may not want to
undergo treatment, but that does not mean he will refuse to do so when the treatment is
offered. Here it was never offered.” (Ibid.) In other words, the department failed to
show that the father “would in fact have refused medication if presented with a choice
between taking it and permanently losing custody of his children.” (Ibid.)
Similarly here, DPSS failed to consider other providers when its referred clinic
determined mother was ineligible for medication. Like in K.C., mother’s psychological
evaluations revealed that her mental health issues interfered with her ability to
acknowledge her condition or trust those involved in the removal of A.O. However,
mother consistently told the court and DPSS that she was willing to take medication if it
meant A.O.’s possible return. In light of her willingness to take medication, and her
attempt to obtain medication, DPSS’s failure to take any additional steps to help mother
obtain a second medication evaluation, such as referring her to a different clinic, or
suggesting that a therapist accompany her to an evaluation, is unreasonable.
DPSS attempts to distinguish K.C. on the ground that it involved a failed
attempt to obtain an evaluation, whereas here, mother obtained the evaluation, just not
the prescription. We do not read the holding of K.C. so narrowly. The court was
concerned with DPSS’s lack of effort to help the father obtain psychotropic medications,
a treatment option that, according to the expert, may have increased his chance of
reunifying with his children. (K.C., supra, 212 Cal.App.4th at p. 326.) The fact that
mother made it one step closer to obtaining medication than the father in K.C. does not
37
change the analysis. The result for both parents was the same: they were unable to access
treatment that could possibly reunify their families. In our view, finding K.C.
distinguishable on the evaluation-versus-prescription point does not promote
reunification.
Thus, we conclude that there was insufficient evidence at both the six- and
twelve-month review hearings to support a finding that DPSS provided reasonable
reunification services. When mother’s therapy sessions with Dr. Winston did not work
out, DPSS gave her a referral for a new therapist. DPSS should have done at least this
much with regard to medication, namely, provided mother with another medication
evaluation referral. In reaching this conclusion, we are not suggesting that DPSS must
secure a prescription for psychotropic medication in order for the court to make a
reasonable services finding on remand. Mother should simply be afforded another
chance to obtain a prescription for psychotropic medication and to participate in therapy,
as necessary. If after mother is given an opportunity to obtain medication she fails to
commence a medication program (either because she convinces the medication evaluators
that medication is unnecessary or because she refuses to take medication once
prescribed), the trial court may properly find that DPSS provided mother with a
reasonable chance to reunify and she failed to take advantage of the opportunity.
We therefore direct the juvenile court to vacate its reasonable services findings
from both the six- and twelve-month review hearings. “When it appears at the six-month
review hearing that a parent has not been afforded reasonable reunification services, the
38
remedy is to extend the reunification period, and order continued services.” (In re Alvin
R. (2003) 108 Cal. App. 4th 962, 973-974.) Where, as here, the juvenile court “found the
services to have been reasonable, [and] . . . ordered an additional six months of services,
just as it would have done, had it found that reasonable services had not been provided,”
the court’s order must nevertheless be reversed, in order to protect against “prejudice to
[the parent] from the ruling [that] will come later, at each successive phase of the
proceedings.” (Id. at p. 974, citing Mark N. v. Superior Court (1998) 60 Cal. App. 4th
996, 1015-1016.)
Our conclusion makes it unnecessary to address mother’s further contentions,
such as her argument that the visitation schedule was unreasonable. We assume that on
remand the court will reexamine visitation issues if mother shows progress as a result of
commencing a medication program.
III
DISPOSITION
The court’s orders issued at the six- and twelve-month review hearings are
reversed only with regard to the findings that DPSS provided mother reasonable
reunification services, and those findings are vacated. The case is remanded to the court
to enter a new order finding that, as of the six- and twelve-month review hearings, DPSS
failed to provide mother with reasonable reunification services. On remand, the court
shall order DPSS to provide mother with reasonable reunification services that are
consistent with her case plan. At a minimum, the court shall order DPSS to provide
39
services designed to give mother an opportunity to commence a psychotropic medication
program, such as medication evaluation referrals and therapy, as necessary. These
services shall be provided for a length of time that is reasonable in light of the
circumstances existing when the court enters the new order and that will allow mother a
meaningful opportunity to reunify with A.O. (See In re Taylor J., supra, 223
Cal.App.4th at p. 1453; In re Alvin R., supra, 108 Cal.App.4th at p. 975.)
CODRINGTON
J.
We concur:
KING
Acting P. J.
MILLER
J.
40
Filed 11/12/15
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.O., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E062111
Plaintiff and Respondent, (Super.Ct.No. INJ1300355)
v. ORDER MODIFYING OPINION
AND GRANTING PARTIAL
M.O., PUBLICATION
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
IT IS ORDERED that the opinion filed in this matter on October 14, 2015 is
modified as follows:
Delete the first sentence in the second paragraph on page 21 of Part II.1. reading,
Rule 5.590(a) states that “after making its disposition order,” the court “must
advise, orally or in writing,” the child, parent, or guardian of his or her right to
appeal from the court order. (Italics added.)
1
It shall be replaced with the following sentence:
Rule 5.590(a) states that “after making its disposition order,” the court “must
advise, orally or in writing, the child, if of sufficient age, and, if present, the parent
or guardian of . . . [t]he right of the child, parent, and guardian to appeal from the
court order. . . .” (Italics added.)
IT IS FURTHER ORDERED that certification of the opinion for nonpublication
dated October 14, 2015 is hereby vacated and set aside. On pages 1 and 40 of the
opinion, the words NOT TO BE PUBLISHED IN OFFICIAL REPORTS are replaced
with the words CERTIFIED FOR PARTIAL PUBLICATION and those words on page 1
are followed by insertion of the following footnote:
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I, II.2, II.3, II.4, and III.
IT IS FURTHER ORDERED that the request for publication of the opinion filed
on October 14, 2015 is GRANTED with the exception of parts I, II.2, II.3, II.4, and III.
The opinion meets the standard for publication as specified in California Rules of Court,
rule 8.1105(c).
2
Except for these modifications, the opinion remains unchanged. These
modifications do not effect a change in judgment.
CERTIFIED FOR PARTIAL PUBLICATION
CODRINGTON
J.
We concur:
KING
Acting P. J.
MILLER
J.
3