In re Felicity S. CA1/2

Filed 8/6/13 In re Felicity S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re FELICITY S., A Person Coming
Under the Juvenile Court Law.
ELIZABETH V.,
Petitioner,
v.
THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA COUNTY OF A138940
CONTRA COSTA,
(Contra Costa County Super. Ct.
Respondent;
No. J12-00173)
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
Real Party in Interest.
Elizabeth V. (mother), the mother of Felicity S., filed a petition for extraordinary
writ pursuant to California Rules of Court, rule 8.452, after the court terminated her
family reunification services and set a hearing pursuant to Welfare and Institutions Code
section 366.26.1 Mother contends that the juvenile court should have granted her request
for six additional months of services. We conclude that substantial evidence supports the
1 All further unspecified code sections refer to the Welfare and Institutions Code.
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juvenile court’s decision to terminate family reunification services and deny mother’s
petition for an extraordinary writ.2
BACKGROUND
The Petition, Detention, and Jurisdiction
On February 2, 2012, the Contra Costa County Children and Family Services
Bureau (the bureau) filed a petition pursuant to section 300, subdivision (b), alleging that
Felicity was at substantial risk of harm due to mother’s failure to provide for the child’s
medical needs. Felicity had received emergency medical treatment on four occasions for
“uncontrolled diabetes and/or diabetic ketoacidosis, a life threatening condition that
occurs as a result of insulin omission.” It further alleged that mother had not properly
observed Felicity’s urine test for diabetic ketoacidosis.
The bureau filed its detention and jurisdiction report, which stated that Felicity
was diagnosed with Type 1 diabetes in February 2009. The report noted that mother was
working with the bureau and healthcare people to provide the proper care for Felicity.
On March 16, 2012, the bureau filed an amended petition. This petition added the
allegation that Felicity had purposely injected herself with an overdose of insulin on
March 1, 2012, while in mother’s care. On March 12, 2012, Felicity was admitted to the
Contra Costa Regional Medical Center Crisis Stabilization Unit because of suicidal
thoughts. Mother, according to the petition, minimized the child’s attempt to commit
suicide. The petition also alleged that mother regularly smoked marijuana while caring
for Felicity and was unable to manage Felicity’s emotional needs.
The bureau filed another amended petition on May 21, 2012. This petition added
an allegation pursuant to subdivision (c) of section 300. This allegation provided that
Felicity had exhibited suicidal behaviors and on March 1, 2012, she “took an overdose of
insulin as a result of mother’s failure or inability to manage the child’s emotional needs.”
The bureau submitted a memorandum dated March 13, 2012, written by
Esmeralda Okendo, a social worker. She recommended that the court detain Felicity.
2 Felicity’s father, Larry S., is not a party to this writ proceeding.
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Okendo had made an unannounced visit to Felicity’s school to meet with her. Felicity
disclosed that she was afraid to return home because her mother threatened to hit her and
told her that she did not care if the court removed her from the home. Okendo received a
“Suspected Child Abuse Report” dated February 22, 2012, stating that Felicity asserted
that her mother yelled at her and slapped her on many occasions. Felicity also reported
that her mother kicked her once. She revealed that her mother told her that she hoped
that Felicity would tell the court that she had been hit and then mother could be rid of her.
Felicity also maintained that mother’s boyfriend was staying in the home and drinking
every night.
On March 16, 2012, the juvenile court detained Felicity, and placed her in the
home of Sarah, her half sister. The contested jurisdiction hearing occurred on June 11,
and June 20, 2012. The court sustained jurisdiction on all counts.
Disposition
The juvenile court held a disposition hearing on October 22, 2012. The court
removed Felicity from the home and ordered reunification services.3 The case plan
provided that mother was to participate in individual therapy, complete family
counseling, maintain a relationship with Felicity, refrain from using physical punishment,
complete a parenting education class, submit to random drug testing, participate in drug
testing two hours before visiting with Felicity, attend a 12-step program, and complete an
outpatient substance abuse program.
The Status Review Hearing
Social Worker Munisha Vohra prepared a status review report dated April 10,
2013. The bureau recommended termination of services as to both parents and the setting
of a section 366.26 hearing. The report indicated that mother had not engaged in case
plan services. Mother was married in November 2012, and then left for Europe on
3 Mother filed an extraordinary writ petition for habeas corpus, A138655,
contemporaneously with an appeal, A137439, from the jurisdictional and dispositional
orders, which are still pending. On July 12, 2013, we denied the request to consolidate
these actions but ordered the habeas petition and appeal to be considered together.
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December 14, 2012. Mother failed to maintain any contact with the social worker. The
status review hearing scheduled for April 10, 2013, was continued to April 22, 2013.
Subsequently, Vohra prepared a memorandum dated April 16, 2013. According to
the memorandum, mother and her new husband visited Felicity in April 2013. Mother’s
new husband was rude to Felicity and blamed her for everything and told her that she was
the reason for mother’s having to return to California. Mother never contacted the social
worker, despite voice messages left with her asking her to contact the social worker.
The memorandum provided that on April 5, 2013, Felicity had a stomachache and
went to the emergency room. On April 9, 2013, she saw a doctor in the emergency room
for infected bug bites on her arms, and had a panic attack during this visit.
The status review hearing scheduled for April 22, 2013, was continued until May
6, 2013. This hearing was continued again until May 2013, and again to June 3, 2013.
The juvenile court held the contested combined six-month and 12-month review
hearing on June 3 and 4, 2013. The court admitted into evidence the bureau’s report
dated April 10, 2013, and the memorandum dated April 16, 2013.
Vohra testified that the first element of mother’s case plan was to maintain contact
with Felicity but mother was in Europe from December 14, 2012, until April 9, 2013, and
had no personal contact with Felicity for almost four months. She acknowledged that
mother did communicate “almost” weekly by telephone with Felicity during that time.
Mother was permitted to have supervised or unsupervised visits and her lack of contact
with Felicity was, in Vohra’s opinion, “voluntar[y].”
Mother’s disregard for Felicity’s feelings was evident, according to Vohra, when
mother left for Europe in December 2012, and Felicity did not know the date of her
mother’s departure. When Vohra told Felicity about her mother’s leaving for Europe the
next day, Felicity “was devastated” and shocked. Felicity cried and stated that she did
not want to be with her mother. Subsequently, Vohra acknowledged that Felicity knew
that mother was going to leave for Europe, but she did not know the exact date.
Vohra agreed that mother had not violated the requirement that she not use
physical punishment with Felicity. She did not believe that mother had attended any of
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Felicity’s medical appointments. Okendo, the prior social worker, had reported that
mother had attended training at the hospital. Vohra acknowledged that mother’s drug
testing was never set up.
Vohra stated that mother did not comply with the orders of the court and had
failed to contact her or any other person at the bureau since October 22, 2012. Mother,
according to Vohra, had not complied with her plan requirement that she participate in
individual and family counseling.
Vohra testified that during the past week she received a phone call from Sarah.
Sarah reported that Felicity tried to kill herself on May 29, 2013. Felicity was taken to
the hospital and, on May 31, during the early morning, moved to a psychiatric, locked
facility for adolescents. This incident occurred while mother was at Sarah’s home and
Sarah was at work. Felicity went to Sarah’s room, took a medication overdose, and
telephoned Sarah. Sarah telephoned mother and asked her “what was going on.” Mother
responded that she did not know what was happening. Sarah, not mother, called 911.
Mother, according to Vohra, visited Felicity one night while she was in the hospital but
had had no other contact with her. Mother never called Vohra to find out how Felicity
was doing.
When asked whether she believed Felicity should be returned to mother’s care,
Vohra replied, “No.” She explained: “[Mother] has not, to my knowledge, completed
any part of the case plan, which is her counseling and psychiatric evaluation or family
therapy. And [my] other observation is that she has not shown any care for this child. In
my conversations that I have [had], especially on April 30th, rather than [show] concern
about Felicity’s mental health, because Felicity was in a hospital for physical and mental
health issues, [over] the last three months on several occasions [mother’s] statement was
disturbing when she said when I asked her, where have you been all that time when your
child was in the hospital? [Mother] said that, where have you been for me?”
Vohra was also troubled over mother’s failure to call 911 when Felicity
overdosed. Mother never contacted Vohra to inquire about the welfare of her child.
Vohra noted that Felicity had remarked on several occasions that she was upset because
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her mother did not show any concern for her well-being and had not provided any
emotional support.
Mother also testified. She claimed that Okendo did not review her case plan with
her and mother denied ever signing it. She admitted that Okendo sent her some
information on parenting classes in the mail. She stated that Felicity knew that she was
planning to leave the United States, and responded “nonchalant[ly]” when told about her
departure. She claimed that there was only one departure date and that she told Felicity
about it. She asserted that she communicated with Felicity weekly by Skype while she
was out of the country. Mother maintained that she also sent Felicity e-mail and text
messages a couple of times a week.
Mother stated that she spoke to Sarah almost daily to inquire about Felicity’s care.
She claimed that she sought out her own individual mental health therapist, and denied
ever receiving any referral information about consulting with any other mental health
provider. She asserted that she met with the supervisor and manager at the bureau and
they told her that she did not need to have direct contact with the social worker.
With regard to the recent incident involving Felicity’s taking an overdose of
medication, mother said that Sarah called her at 8:10 p.m. to tell her that Felicity had
taken pills. She did not call 911 because Sarah said she was calling 911. Prior to her
taking pills, mother insisted that Felicity’s demeanor was “fine.” She said that Felicity
was a little upset about a visit with her friend. Felicity had said that she was going to bed
and then about 15 or 20 minutes later she received the phone call from Sarah about
Felicity’s taking pills. She did not go to the hospital that night but stayed with Sarah’s
son while Sarah went to the hospital. She claimed to have visited Felicity on Thursday,
Friday, and Saturday, following Felicity’s hospitalization on Wednesday. She
acknowledged that she did not call Vohra but explained that she did not need to call her
since she spoke directly to Sarah and the health care providers.
On cross-examination, when asked whether she recalled receiving a referral
regarding family therapy from Okendo, mother said that she did not receive a letter.
When handed a copy of the letter that included the referral, she admitted that she did
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receive the referral regarding family therapy. Mother also acknowledged that she
received a copy of her case plan.
When asked whether she believed that Felicity should be returned to her, mother
responded that she did. Mother admitted that she was currently living outside of the
United States and that she had made no arrangements to take Felicity home. The court
asked mother what arrangements she had made for Felicity regarding school and medical
coverage. Mother responded, “Well, I’ve already looked into all of that in the Czech
Republic. But if she were to return to me immediately, that whole process would take
many months to get everything in order before she would be ready to move.” Mother
admitted that she was not currently ready to take Felicity. She admitted, “Right now I
don’t have the facility [sic] for her.” Mother stated that she was planning to leave the
country in June, and that she had told Felicity about her impending departure.
Counsel for Felicity agreed with the bureau’s position to terminate reunification
services. Counsel stated: “As I see it regardless of whether [mother] has complied with
the case plan or not complied with the case plan there’s essentially no change in where
we are now from where we were at the beginning. In fact, we may even be further
behind, because I think her level of indifference on this child’s plight is greater than it
was when we started this case. [¶] What she testified to about the events of last week
was just stunning to me. And 10 feet away from her she hears that her child attempted to
commit suicide and she essentially does nothing. . . .”
At the end of the hearing, the juvenile court stated, in pertinent part, the following:
“The issue presented at the six and 12-month review contest was whether or not the
mother was in a position to take Felicity into her care today or whether the court should
as an alternative extend services to the 18-month mark, or in the further alternative
whether the court should adopt the recommendations that are submitted by the bureau in
[its] report and set a [section 366.26] hearing.
“It is clear to me based on the facts that are evidence in the report and from
testimony adduced at this hearing that this court has no alternative but to adopt the
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recommendations submitted by the bureau. This is not a close case. This is not even a
case where there is another side or another alternative that has to be seriously debated.
“Felicity as I speak is recovering from another 5150, one in which her mother was
at hand and for a second significant lapse failed to take the appropriate directive and
immediate actions that were needed for Felicity’s care. I’m not satisfied that her mother
has any insight into the fragility of Felicity’s emotional and physical health and as a
result is intent on making plans that seem to completely overlook Felicity’s needs and
only take into account her own personal needs making Felicity’s needs subservient to her
own needs. If the court were to go along with that that would subject Felicity not only to
the immediate risk and detriment to her safety and physical and emotional safety but
would also subject her to a plan of action that was completely lacking in detail and
lacking in any kind of forethought or care that someone of Felicity’s needs would have to
have considered.”
The juvenile court adopted the bureau’s recommendations to terminate services
and set the matter for a section 366.26 hearing on September 20, 2013. In its order
following the hearing, the court further ruled that mother failed to contact or visit the
child sufficiently and that she failed to participate regularly in the court-ordered treatment
plan.
Mother filed a petition for extraordinary writ in this court and requested a stay.
DISCUSSION
Mother maintains that the juvenile court should have extended her reunification
period beyond 12 months to 18 months because the record establishes that she
substantially complied with her case plan and that Felicity could be returned to her in the
next six months (§ 366.21, subd. (g)(1)). She also contends that services should have
been extended under the extraordinary case exception. (See §§ 361.5, subd. (a)(3);
366.22, subd. (b).) The extraordinary circumstances were, according to mother, that she
was out of the country for four months and Felicity’s mental health concerns.
Unless an exception applies, the court shall provide reunification services for no
longer than 12 months from the date the child entered foster care. (§ 361.5, subd.
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(a)(1)(A).) Here, Felicity was detained on March 16, 2012, and on June 4, 2013, more
than 12 months later, the juvenile court terminated mother’s reunification services.
Court-ordered reunification services may be extended to a maximum of 18 months
from the date a child was originally removed from a parent’s custody (in this case, to
September 16, 2013), but only if the court finds a substantial probability that the child
will be returned to the parent within the extended period or that reasonable services have
not been provided. (§§ 361.5, subd. (a)(3); 366.21, subd. (g)(1).) Here, mother does not
claim that the services offered were unreasonable, but argues that the record shows a
substantial probability that the child will be returned within the extended reunification
period.
To find a substantial probability of return within the extended reunification period,
the court must find the parent has: (1) consistently visited the child; (2) made
“significant progress” in resolving the problems that led to the child’s removal; and (3)
demonstrated the capacity and ability to complete the objectives of the case plan and to
provide for the child’s safety, protection, and physical and emotional well-being, and
special needs. (§ 366.21, subd. (g)(1); Cal. Rules of Court, rule 5.715(b)(4)(A).)
We review the juvenile court’s finding to determine whether it is supported by
substantial evidence. We resolve all conflicts in the evidence in favor of the juvenile
court’s ruling and draw all legitimate inferences in its favor. (Elijah R. v. Superior Court
(1998) 66 Cal.App.4th 965, 969.) Mother has the burden of showing the evidence was
insufficient to support the court’s findings and order. (In re Diamond H. (2000) 82
Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court
(2001) 26 Cal.4th 735, 748, fn. 6, superseded by statute on another issue.)
On appeal, mother does not argue that the juvenile court should have immediately
returned Felicity to her care. Indeed, at the status review hearing mother admitted that
she was not ready to take care of Felicity, and stated “that whole process would take
many months.” Mother’s contention on appeal is that the juvenile court should have
extended services for an additional six months. The evidence in the record, however,
does not support her argument.
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The record establishes that mother cannot satisfy any of the three requirements
under section 366.21, subdivision (g). Mother did not consistently visit Felicity. Mother
was in Europe from December 14, 2012, until April 9, 2013, and, although she
communicated weekly with Felicity by Skype, she had no personal contact with her
during this period.
Additionally, the record established that mother had made little, if any progress,
towards, resolving the problems that led to Felicity’s removal and she did not
demonstrate a capacity or ability to complete the objectives of her case plan. Felicity was
removed partly because of mother’s inability to attend to her medical needs.
Additionally, the petition alleged that mother could not manage Felicity’s emotional
needs. Felicity had tried to commit suicide on March 1, 2012, and was admitted for
having suicidal thoughts to the Contra Costa Regional Medical Center Crisis Stabilization
Unit on March 12, 2012. Less than one year later, mother left and stayed in Europe for
almost four months.
Furthermore, once mother returned from the Czech Republic in April 2013, she
still demonstrated little progress towards handling Felicity’s emotional problems. In May
2013, Felicity again took an overdose while with mother. Mother did not call 911, but
relied on Sarah’s calling for help. She also did not accompany Felicity to the hospital
and, according to the social worker, visited Felicity only once. Mother never called
Vohra to find out how Felicity was doing, although she claimed that she called Sarah and
other medical care people. Felicity repeatedly told Vohra that mother never inquired
about her health or hospitalizations.
Mother also did not comply with the requirement of her case plan that she
participate in family therapy. She first claimed that she never received any referral but,
after confronted with the letter containing the referral information, she admitted receiving
it. She also did not attend Felicity’s medical appointments.
Furthermore, as the juvenile court noted, mother showed a complete lack of
understanding or compassion regarding Felicity’s fragile condition. Mother’s disregard
for Felicity’s emotional state was further evidenced by her failure in December 2012 to
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tell Felicity the exact date she was leaving the country. Vohra maintained that Felicity
was devastated when informed that mother was leaving the country without telling her.
Mother disputed this and claimed she had informed Felicity, but the court was entitled to
disbelieve mother’s rendition of events. Upon her return to California, she expected
Felicity to move to the Czech Republic with her even though Felicity was both medically
and psychologically fragile. She had made no arrangements in the Czech Republic for
Felicity’s schooling or medical care.
Accordingly, we conclude that the record supported the juvenile court’s finding
that services should not be extended under section 366.21, subdivision (g)(1).
Mother also maintains that the juvenile court should have extended services under
the exceptional circumstances exception and cites section 366.22, subdivision (b) and
section 361.5, subdivision (a)(3). She argues in a conclusory fashion that services should
have been extended because of her absence for four months in the Czech Republic and
Felicity’s mental health issues.
In exceptional or “rare instances” juvenile courts have discretion to continue
services beyond 12 and 18 months. (See, e.g., In re Elizabeth R. (1995) 35 Cal.App.4th
1774, 1777-1778 [when a parent has an “impeccable record of visitation,” and has made
every effort to comply with the reunification plan, but is hospitalized for mental illness
for all but five months of the reunification phase of the dependency proceedings, the
juvenile court has the discretion to continue reification services].) Under section 366.22,
subdivision (b), a court may order an additional six months of services if the parent is
making progress in a residential drug treatment program, is recently discharged from
incarceration or institutionalization, or is in custody of the United States Department of
Homeland Security. However, the court must find by clear and convincing evidence that
services are in the child’s best interest and that there is a substantial probability that the
child will be returned to the physical custody of his or her parent. Section 361.5,
subdivision (a)(3) provides that a court shall consider the special circumstances of an
incarcerated or institutionalized parent, a parent in a court-ordered residential substance
abuse treatment program, and a parent arrested and issued an immigration hold when
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deciding whether to extend services “up to a maximum time period not to exceed 18
months after the date the child was originally removed from physical custody of his or
her parent or guardian if it can be shown . . . that there is a substantial probability that the
child will be returned to the physical custody of his or her parent . . . within the extended
time period” or that reasonable services have not been provided.
The present case does not present exceptional circumstances. Mother claims that
the combination of her four months in Europe and the fragility of her daughter created
exceptional circumstances justifying the extension of services. Mother, however, was
provided with services throughout the dependency proceedings and her travel to Europe
was not an external factor preventing her from participating in the case plan. Mother
voluntarily chose to leave the country and her fragile daughter. Not only was there no
external barrier to mother’s receiving services, mother cannot demonstrate “a substantial
probability that the child will be returned” to her physical custody. (See §§ 366.21, subd.
(g)(1), 361.5, subd. (a)(3).) As already discussed, mother failed to demonstrate that she
made any significant progress in meeting the goals of her case plan. Mother also has
made no showing that a continuation of services would be in Felicity’s best interests.
Since we have concluded that substantial evidence supported a finding that mother
failed to make significant progress, a required finding for substantial probability of
return, we affirm the juvenile court’s order terminating mother’s reunification services.
DISPOSITION
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art.
VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888; § 366.26, subd. (l)(1) [precluding
further challenge to these orders by petitioner in any subsequent appeal].) The request
for stay of the section 366.26 hearing, which is set for September 20, 2013, is denied.
Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
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_________________________
Brick, J.*
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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