In re S.O. CA2/6

Filed 4/24/13 In re S.O. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re S.O., a Person Coming Under the 2d Juv. No. B242948
Juvenile Court Law. (Super. Ct. No. J068357)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
AMANDA O.,
Defendant and Appellant.
Amanda O. (mother) suffers from a severe mental disorder. Due to
manifestations of that illness, her daughter S.O. was removed from her custody shortly
after the child's birth. Two months after reunification services were ordered, mother
began a new drug treatment and responded positively. At the six-month review hearing,
however, mother did not oppose the termination of services and instead sought to have
the child placed with the maternal grandmother. After the juvenile court denied the
request and scheduled a permanency planning hearing (Welf. & Inst. Code, § 366.26),1
mother filed a modification petition seeking reinstatement of reunification services
1 All further statutory references are to the Welfare and Institutions Code.
(§ 388) on the ground that her mental condition had improved to the point she could now
comply with her case plan. The court denied the petition and proceeded to terminate
mother's parental rights and select adoption as S.O.'s permanent plan. Mother now
appeals.
Although we are not unsympathetic to mother's position, it cannot be said
the court abused its discretion in concluding that the indisputably dramatic change in
mother's mental condition was simply not enough to establish that further reunification
services would be in S.O.'s best interests. Because the child's best interests became
paramount once services were terminated and mother did not oppose the termination of
those services, there is no basis for us to disturb the court's decision. Accordingly, we
affirm.
FACTS AND PROCEDURAL HISTORY
Mother was diagnosed with schizophrenia at the age of 17, and was
subsequently diagnosed with schizoaffective and bipolar disorders. Shortly after S.O.'s
birth in June 2011, mother began behaving erratically and barricaded herself in her
hospital room with S.O. Although hospital staff were able to remove S.O. for tests the
following morning, mother's condition worsened after the child was returned to her.
After a 30-minute standoff with the police, mother was restrained while S.O. was taken
into custody.
On June 23, 2011, Ventura County Human Services Agency (HSA) filed a
section 300 petition alleging that mother's mental illness impaired her ability to care for
S.O. and created a significant risk of future abuse or neglect.2 The following day, the
court ordered S.O. detained and set a jurisdiction and disposition hearing for July 19,
2011. Mother was prohibited from having further contact with S.O. until her condition
had stabilized and she was able to comply with her treatment.
2 The petition alleged that the identity of S.O.'s father was unknown. Although
mother subsequently identified him, he did not appear in the proceedings and is not a
party to this appeal.
2
On July 3, 2011, mother was voluntarily admitted for psychiatric treatment.
She was then placed on a 72-hour hold and certified for an additional 14 days of
treatment (§§ 5150, 5250). On July 11, 2011, she was discharged and referred to her
regular psychiatrist, Dr. Jantje Groot, for further treatment.
Mother was interviewed by an HSA social worker three days after her
discharge. Mother had difficulty understanding the questions and frequently did not
respond. Her parents reported she was psychiatrically hospitalized on two prior
occasions and was stable from 2009 until three to four months prior to S.O.'s birth. Dr.
Groot indicated that mother was not taking all of her medications and was minimizing her
psychotic symptoms, which included hearing voices.
Mother had her first supervised visit with S.O. on July 18, 2011. Mother's
parents and a public health nurse were also present. During the visit, the social worker
observed that mother required "lots of coaching" from the nurse and did not appear to
know how to hold, feed, or bond with the child.
A contested jurisdiction and disposition hearing was set for September 8,
2011. When the matter was called, mother announced she had abandoned her contest and
waived her right to a trial. The court sustained the section 300 petition, ordered that
mother be provided reunification services, and set a six-month review hearing for January
3, 2012. The court adopted HSA's recommended case plan, which included a
psychological evaluation, counseling, psychotropic medication, parenting education, and
supervised visitation. Mother and her parents were given a list of service providers and
each aspect of the case plan was discussed.
On October 4, 2011, mother missed her scheduled psychological
evaluation. Mother's new social worker subsequently discussed the case plan with her
and arranged to have the maternal grandmother take her to her rescheduled evaluation,
which was conducted by Dr. Christina Griffin on October 17, 2011. In her report, Dr.
Griffin opined that mother could not presently care for her own needs and did not have
the capacity to adequately parent S.O.
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After mother underwent the psychological evaluation, she missed several
appointments with her social worker. During an unannounced visit in December 2011,
mother appeared confused and said she had not been performing her case plan because
her mother lost it and she could not remember what it said. Dr. Groot told the social
worker that mother had been attending her monthly appointments, although she was
sometimes off by two or three days. The doctor also reported that mother had been doing
better since beginning her new medication regimen a month earlier. That medication was
administered by an injection given every four weeks.
At the six-month review hearing, HSA recommended that reunification
services be terminated and the matter be set for a permanency planning hearing. The
social worker reported that mother consistently needed help caring for S.O. during their
visits and had failed to sufficiently participate in her case plan.
Mother contested HSA's recommendation and a hearing was set for
February 1, 2012. When the matter was called, however, mother abandoned her
opposition to the termination of services and urged the court to grant the maternal
grandmother's request for relative placement of S.O. pursuant to section 361.3. The court
denied the request and proceeded to terminate reunification services and set the matter for
a section 366.26 hearing. In its notice of hearing, HSA stated it was recommending
termination of mother's parental rights and implementation of a plan of adoption. A
contested hearing was subsequently set for June 14, 2012.
Prior to the section 366.26 hearing, mother filed a section 388 petition
seeking reinstatement of reunification services. At the combined hearing, Dr. Groot
testified that mother "has had tremendous improvement in her symptoms" over the prior
six months. Over the course of that period, her hallucinations had steadily disappeared
and she "basically [got] her personality back." The positive changes began after mother's
medication was altered following her hospitalization in July 2011. The doctor began by
giving mother injections of Risperdal Consta every two weeks. In November 2011, the
doctor began giving mother injections of Invega Sustenna every four weeks combined
with doses of antidepressant and insomnia medications. When the doctor last saw mother
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in April 2012, her mental condition had stabilized and she could "be essentially self-
sustaining and run her life like any other person." The doctor acknowledged, however,
that "it remains to be seen whether" she could actually do so. There also remained a
"substantial risk" that mother would not continue to comply with her medication
requirements. She would presumably have to continue having the injections or a similar
medication for the rest of her life. If she stopped, there was a 90 percent chance she
would suffer mental decompensation within six months.
Mother's social worker testified that she had seen many positive changes in
mother since reunification services had been terminated. Although mother's ability to
care for S.O. during visits had improved, one or both of her parents were always there to
assist her and she still "usually needs to be prompted to feed the child or change the child
or . . . play with [her]." The social worker also believed that mother "still requires a lot of
help from her own parents to care for her own needs" and noted that she "hasn't shown
any independence or any initiative to ask for more visits[.]" Although S.O. now
recognized mother, the two did not have a bond. The child "doesn't seem to gravitate
toward" mother during their visits and "[a]s soon as she gets home from the visits, she
reaches for her foster mother."
Mother testified on her own behalf. Ever since she started having her
monthly injections, her mood had changed and she was more aware. She never
considered discontinuing her medication, but there are negative side effects. She
graduated from a parenting class and believed that S.O. "[knew] more or less who I am."
She was also seeing a therapist once a week.
At the conclusion of testimony, counsel for S.O. joined HSA's counsel in
asking the court to deny mother's section 388 petition, terminate her parental rights, and
select adoption as the child's permanent plan. The court thereafter entered an order to
that effect.
DISCUSSION
Mother contends the court abused its discretion in denying her section 388
modification petition because she demonstrated that circumstances had changed and that
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further reunification services would be in S.O.'s best interests. We conclude otherwise.
Section 388 authorizes a juvenile court to modify a prior order if a parent
shows a change of circumstances and establishes that modification is in the best interests
of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The court has broad
discretion in resolving a petition to modify a prior order, and its determination will not be
disturbed on appeal unless an abuse of discretion is clearly shown. (Id. at p. 318.)
"'[U]p until the time the section 366.26 hearing is set, the parent's interest in
reunification is given precedence over a child's need for stability and permanency.'
[Citation.] 'Once reunification services are ordered terminated, the focus shifts to the
needs of the child for permanency and stability.' [Citation.] 'The burden thereafter is on
the parent to prove changed circumstances pursuant to section 388 to revive the
reunification issue. . . .'" (In re Zacharia D. (1993) 6 Cal.4th 435, 447; In re Vincent M.
(2008) 161 Cal.App.4th 943, 955.) Where, as here, the court's ruling is against the party
who has the burden of proof, it is practically impossible for the party to prevail on appeal
by arguing the evidence compels a ruling in her favor. Unless the trial court makes
specific findings of fact in favor of the moving party, we must presume the court found
that her evidence lacks sufficient weight and credibility to carry the burden of proof.
(Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.) "[W]hen a court has made a
custody determination in a dependency proceeding, '"a reviewing court will not disturb
that decision unless the trial court has exceeded the limits of legal discretion by making
an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.] . . .'
. . . When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial court."'
[Citations.]" (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
The court did not abuse its discretion in finding that mother had failed to
meet her burden of establishing not only that circumstances had changed, but also that
ordering further reunification services would be in S.O.'s best interests. In making the
latter determination, courts generally consider the seriousness of the problem leading to
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the dependency, the strength of the relative bonds between the child and her parents and
caretakers, and the degree to which the problem can be easily removed as well as the
current success of the parent in correcting the problem. (In re Kimberly F. (1997) 56
Cal.App.4th 519, 532.) Mother suffers from a serious mental illness that, when left
untreated, causes hallucinations and other psychotic symptoms. A manifestation of those
symptoms shortly after S.O.'s birth presented a direct and immediate danger to the child's
safety. Although mother had made tremendous progress in addressing the problem at the
time of the hearing, that progress was relatively recent and a significant possibility of
relapse still remained. She also still had to be prompted to feed, change, or play with
S.O. during her visits with the child, and had not demonstrated any initiate to visit with
the child more often.
Moreover, no substantial bond exists between mother and S.O. such that it
could be said further reunification services would be in the child's best interests. In
arguing to the contrary, mother offers that she had shown devotion to S.O. in a number of
ways and "definitively took advantage of her visitation time to bond." The issue is not,
however, whether mother has expressed her affection for S.O. While we do not question
mother's commitment to bonding with S.O., it unfortunately appears that her efforts had
yet to be successful when her section 388 petition was heard. Although S.O. enjoyed
their visits, she is very secure in her long-term prospective adoptive placement and
reaches out for her prospective adoptive mother whenever she returns from her visits with
mother. In light of this undisputed evidence, it cannot be said that offering mother
additional reunification services would be in S.O.'s best interests.
In support of her claim, mother asserts that "this case cries out for the same
rational[e] as applied in" In re Elizabeth R. (1995) 35 Cal.App.4th 1774 (Elizabeth R.).
Elizabeth R. is inapposite. The error in that case was the trial court's decision to
terminate reunification services in the first instance. The issue, as framed by the Court of
Appeal, was "whether the juvenile court was compelled by law to terminate reunification
services and order a Welfare and Institutions Code section 366.26 hearing when a parent,
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although hospitalized for treatment of her mental illness for most of the reunification
period, had substantially complied with the reunification plan." (Elizabeth R., at p.
1787.) In answering this question in the negative, the court essentially relied on the
principle that any reunification services offered to a parent suffering from mental illness
must be reasonable services. (Ibid.)
Here, mother did not challenge the termination of services, either in the trial
court or by petitioning for extraordinary writ relief. She thus cannot be heard to complain
that reasonable services were not provided. (In re Henry S. (2006) 140 Cal.App.4th 248,
255-256.) Once reunification services were terminated, the burden shifted from mother's
interest in reunification to S.O.'s interest in permanency and stability. (In re Stephanie
M., supra, 7 Cal.4th at p. 317.) As the court in Elizabeth R. effectively recognized, the
mother in that case would have been unable to demonstrate that further attempts at
reunification were warranted once this burden had shifted. (Elizabeth R., supra, 35
Cal.App.4th at pp. 1797-1798.) Mother is in no better position.
We appreciate that mother's mental illness may have rendered it difficult
for her to understand the need to comply with the objectives of her case plan. We also
acknowledge that proper reunification plans for parents suffering from mental illness
should be designed to accommodate such concerns. (Elizabeth R., supra, 35 Cal.App.4th
at p. 1790.) Any deficiency in mother's plan was, however, a matter to be addressed at
the dispositional hearing. Here, mother never claimed that reasonable services were not
offered, nor did she seek appellate review of the order terminating services. For
purposes of this appeal, the only issue is whether the court abused its discretion in finding
that mother had failed to prove circumstances had changed such that it would be in S.O.'s
best interests to offer additional services. As we have explained, no abuse of discretion
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has been shown.
The order denying mother's modification petition and terminating parental
rights is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Ellen Gay Conroy, Judge
Superior Court County of Ventura
______________________________
Kate M. Chandler, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leroy Smith, County Counsel, Oliver G. Hess, Assistant County Counsel,
for Plaintiff and Respondent.
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