Opinion
A150475
08-03-2017
In re J.R., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. J.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. OJ15024075-01)
INTRODUCTION
Appellant J.R. has been a dependent of the juvenile court since she was 16. She became a nonminor dependent while still in high school, once she turned 18 years old, the Alameda County Social Services Agency (Agency) sought to terminate her dependency because she no longer met the statutory requirements that she be working, enrolled in school, or had been found incapable of doing so due to a medical condition.
J.R.'s counsel sought an extension of the termination hearing because J.R. had a psychological examination scheduled to determine if she had a qualifying medical condition, an examination that she had previously refused to undergo. Counsel also sought to call J.R.'s caregiver as a witness to testify about her mental health symptoms. The court denied both requests, and terminated J.R.'s nonminor dependent status. We conclude none of those orders were an abuse of discretion, and affirm.
BACKGROUND
J.R. was removed from her home and adjudicated a dependent child in 2015, when she was 16 years old. The court found true allegations that J.R.'s mother failed or was unable to supervise or protect J.R., and that J.R. was suffering serious emotional damage "evidenced by anxiety, depression and aggressive behavior toward the mother, as well as instances of threatening to harm herself and committing self[-]mutilation in the past." The Agency's initial report indicated J.R. had been diagnosed with anxiety and ADHD, and her mother believed she had been diagnosed with bipolar disorder.
In April 2016, while she was still in high school, J.R. turned 18 years old. The Agency filed a report recommending J.R. continue dependency as a nonminor dependent and continue her placement in a group home, noting she was still in high school and thus met the eligibility criteria for nonminor dependency under Welfare and Institutions Code section 11403. The report indicated she had been diagnosed with anxiety disorder and ADHD, and that the court had approved a request for psychotropic medication. J.R. was attending weekly therapy sessions.
All further undesignated statutory references are to the Welfare and Institutions Code.
J.R. graduated from high school in June. Her social worker informed her that to continue her status and placement, she must enroll in an institution offering post-secondary education or vocational training. J.R. indicated she would attend community college in the fall, and enroll in photography classes for the summer. She did not. Instead, in September she enrolled in an art class through Castro Valley Adult and Career Education. She attended only one class, telling her social worker she stopped going because "the other students were too old."
Also in September, J.R. "was restrained and placed on a 72 hour hold for danger to self." According to J.R., this was because she was intoxicated and needed a new placement. J.R. acknowledged smoking marijuana and drinking alcohol while taking her psychotropic medications. Kaiser Permanente "reportedly declined to continue to prescribe psychotropic medication after [J.R.] would not attend their Chemical Dependency program." The social worker reported J.R. "had an increase in acting out verbally and behaviorally. . . ."
The 72-hour hold is an apparent reference to section 5150, which authorizes a peace officer or other designated professional to cause a person who, "as a result of a mental health disorder, is a danger to others or to . . . herself," to be placed in custody for up to 72 hours for "assessment, evaluation, and crisis intervention. . . ." (§ 5150, subd. (a).)
Following J.R.'s "involuntary hold," J.R. agreed to "resume therapy and get a psychological evaluation to be considered for category five." After agreeing to do so, J.R. refused a referral for the psychological evaluation. The Agency's November 14 report indicated J.R. "exercised her right to not consent to treatment or be evaluated." J.R. was no longer meeting with a therapist, and reported she "was healthy and able to move on with her daily activities." Those activities included "get[ing] up early to go smoke or drink, post on social media and socialize with her friends." The Agency recommended termination of J.R.'s nonminor dependency.
"Category five" refers to section 11403, subdivision (b)(5), under which the nonminor may be eligible for continued dependency if he or she has a medical condition that prevents him or her from meeting the other eligibility requirements.
At the November hearing, J.R.'s attorney indicated she was requesting a contested hearing because she believed J.R. could qualify under "category five," asserting she had a medical condition rendering her incapable of working or going to school, and hoped "to collect the appropriate evidence before the contest so . . . she is able it remain in care." The court set the contested termination hearing in two months, in January 2017.
In an addendum to its report for the January 25 hearing, the Agency stated J.R.'s whereabouts were unknown, and that she had last contacted her social worker from someone else's cell phone.
At the termination hearing, J.R.'s attorney sought a continuance because she represented J.R. had a neuropsychological evaluation scheduled the following week. She stated it was "the earliest evaluation she could get after arriving at [her current caregiver's] home" in January. The court denied the request. The court also denied the request of J.R.'s attorney to call the current caregiver as "a first-hand witness to the symptoms [J.R.] exhibits that would prevent her from making appointments."
J.R.'s social worker testified she had met with J.R. in December and had again offered her a psychological evaluation and substance abuse treatment. J.R. initially agreed to the psychological evaluation, but then indicated "she didn't want to get evaluated and she didn't want to resume therapy or any evaluation, that she was fully capable of enrolling in school." She also declined the substance abuse treatment. The social worker testified J.R. told her "she would do what she wanted to do and that [sometimes] she needed to take a break; [sometimes] she wanted to socialize with her friends and she would get around to it; she didn't need help."
J.R. testified she did not remember if she enrolled in school between May and November 2016. She explained she was "planning to do [o]nline courses," but did not sign up because she "need[ed] more help." J.R. did not know what kind of help she required, "[j]ust like, helping me out like that." J.R testified that during the May through December time period, she had not been employed or attended college, or attended any program that would remove barriers to employment. When asked what she had done since June to comply with the nonminor dependent eligibility requirements, she replied "Nothing so far. I'm planning to."
The court thereafter dismissed J.R.'s dependency because she did not meet the section 11403, subdivision (b) eligibility criteria.
DISCUSSION
Nonminor Dependency Eligibility
In order to provide context to the issues on appeal, we briefly summarize the law regarding nonminor dependency. With the enactment of the California Fostering Connections to Success Act (Assem. Bill No. 12 (2009-2010 Reg. Sess.); Assem. Bill No. 212 (2011-2012 Reg. Sess.)), effective January 2012, "the Legislature made major amendments to California's juvenile dependency system as it applied to nonminor dependents." (In re Aaron S. (2015) 235 Cal.App.4th 507, 516.) A nonminor former foster child may continue to receive assistance up to age 21 if one or more of the following conditions is met: "(1) The nonminor is completing secondary education or a program leading to an equivalent credential. [¶] (2) The nonminor is enrolled in an institution which provides postsecondary or vocational education. [¶] (3) The nonminor is participating in a program or activity designed to promote, or remove barriers to employment. [¶] (4) The nonminor is employed for at least 80 hours per month. [¶] (5) The nonminor is incapable of doing any of the activities described in subparagraphs (1) to (4), inclusive, due to a medical condition, and that incapability is supported by regularly updated information in the case plan of the nonminor. . . ." (§§ 11403, subd. (b), 11400, subd. (v)(1).)
"Section 11403 specifies procedures to be followed to maintain a nonminor's eligibility. . . . Under subdivision (c), '[t]he social worker . . . shall verify and obtain assurances that the nonminor dependent continues to satisfy at least one of the conditions in subparagraphs (1) to (5), inclusive, of subdivision (b) at each six-month transitional independent living case plan update. The six-month case plan update shall certify the nonminor's eligibility pursuant to subdivision (b) for the next six-month period.' " (N.S. v. Superior Court (2016) 7 Cal.App.5th 713, 719-720.)
To establish "category five" eligibility, an "All County Letter No. 11-69" explained two determinations must be made: "first, the nonminor dependent must have a medical condition, and second, the condition must render the nonminor unable to do any of the activities described in subparagraphs (1) through (4). A 'medical condition' is 'a physical or mental state' that limits the dependent's ability to participate in those activities. . . . 'Verification that a nonminor dependent cannot consistently meet the full requirements of subparagraph (1) to (4) can be satisfied by written documentation by a healthcare practitioner which explains that one of the reasons that the nonminor is unable to meet the criteria of subparagraphs (1) to (4) is because he or she has a "medical condition" as defined in this subsection. . . . [¶] The nonminor dependent is deemed eligible for extended benefits under this section upon a verification of eligibility for such a condition. . . . [¶] The nonminor dependent, unless incapable, is responsible for obtaining and providing the social worker or probation officer with . . . the written verification from a healthcare practitioner stating that the nonminor dependent has a medical condition and that he or she cannot consistently meet the full requirements of subparagraphs (1) to (4). . . .' " (N.S. v. Superior Court, supra, 7 Cal.App.5th at p. 720, italics added.)
The "All County Letter No. 11-69" was issued pursuant to section 11403, subdivision (j), which directed the State Department of Social Services to "prepare for implementation of the applicable provisions of this section by publishing . . . all-county letters or similar instructions from the director by October 1, 2011, to be effective January 1, 2012." --------
Denial of Continuance
J.R. first asserts the juvenile court erred in denying her a continuance, which she sought because she had a neuropsychological evaluation scheduled the week following the January 2017 hearing.
Section 352, subdivision (a) provides in part: "Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor." Continuances in juvenile dependency proceedings are disfavored, and may only be granted on a showing of good cause. (In re David H. (2008) 165 Cal.App.4th 1626, 1635; Cal. Rules of Court, rule 5.550(a)(2).) "In order to obtain a continuance, written notice with supporting documents must be filed and served on all parties at least two court days before the date set for hearing, unless the court finds good cause for hearing an oral motion." (Cal. Rules of Court, rule 5.550(a)(4).) The denial of a continuance is reviewed for abuse of discretion. (In re David H., at p. 1635.)
J.R. did not file a written motion for continuance, and gave no reason for not doing so. The only reason given for the requested continuance at the hearing was that J.R. had finally scheduled the neuropsychological evaluation, which she had repeatedly refused to do during the compliance period. Indeed, J.R. previously told her social worker she "had no legal right . . . to force her to get evaluated or anything." Nevertheless, the contested hearing had been continued for two months for the purpose of obtaining this evaluation. J.R.'s attorney represented at the November 2016 hearing that "I . . . have left several messages . . . for [J.R.'s] physician and hope that we will be able to collect the appropriate evidence before the contest so that we can make sure that she is able to remain in care."
It was well within the court's discretion to deny the belated request to, again, continue the termination hearing.
Proposed Testimony of New Caretaker
The court denied the request of J.R's attorney to call J.R.'s "current caregiver," as of January 2017, to testify "as a first-hand witness to the symptoms that [J.R.] exhibits that would prevent her from making appointments [for a medical evaluation]." The Agency objected on the grounds the caregiver was not qualified to testify as to a medical opinion, and her testimony regarding her observations of J.R. in January was not relevant because it was "after the fact of this reporting period."
J.R.'s attorney suggested J.R. may have a medical condition that not only meets the statutory requirements for nonminor dependency, but also rendered her incapable of obtaining verification of that medical condition. Under the All-County Letter, " '[t]he nonminor dependent, unless incapable, is responsible for obtaining and providing the social worker . . . [with] the written verification from a healthcare practitioner. . . .' " (N.S. v. Superior Court, supra, 7 Cal.App.5th at p. 720.) The offer of proof regarding the caregiver's testimony was regarding neither the medical condition, about which the caregiver was not qualified to opine, nor whether J.R. was incapable of obtaining the verification. There was no dispute that J.R. did not want to have a medical evaluation—she had agreed to have one and then changed her mind twice in the past. The new caregiver's observations during the first three weeks of January were simply irrelevant to the issue of whether J.R. had been incapable of obtaining verification of her medical condition on her own in the previous six-month period, as opposed to refusing to do so. J.R. has not demonstrated an abuse of discretion.
Termination of Nonminor Dependency
J.R. maintains the court had discretion to continue dependency jurisdiction "irrespective of [section 11403]" because the Agency failed to establish termination of dependency was in J.R.'s best interests, citing section 391, subdivision (b)(2).
Section 391 provides in part: "At any hearing for a nonminor at which the court is considering termination of the jurisdiction of the juvenile court, the county welfare department shall do all of the following: [¶] . . . [¶] Submit a report describing whether it is in the nonminor's best interests to remain under the court's dependency jurisdiction, which includes a recommended transitional independent living case plan for the nonminor when the report describes continuing dependency jurisdiction as being in the nonminor's best interests." (§ 391, subd. (b)(2).) "The court must continue the dependency of a nonminor dependent who meets the statutory definition and who wishes to remain subject to dependency jurisdiction unless 'the nonminor is not participating in a reasonable and appropriate transitional independent living case plan' or unless after reasonable and documented efforts, the nonminor cannot be located. [Citations.] The party seeking to terminate jurisdiction bears the burden of proof." (N.S. v. Superior Court, supra, 7 Cal.App.5th at p. 721, italics added.) "Not meeting at least one of the five eligibility conditions in section 11403, subdivision (b) constitutes a failure to participate in a transitional independent living case plan." (In re Aaron S., supra, 235 Cal.App.4th at p. 516.)
"Though section 391 requires consideration of 'whether it is in the nonminor's best interests to remain under the court's dependency jurisdiction,' the juvenile court is nonetheless authorized to terminate jurisdiction over a nonminor dependent if he or she is not participating in his or her case plan. [Citations.] As it is axiomatic that it would be detrimental for any nonminor dependent to stop receiving services, the mere assertion of such detriment without any proof of reasonable participation by the nonminor in his or her case plan does not demonstrate that the court abused its discretion." (In re Aaron S., supra, 235 Cal.App.4th at pp. 519-520, italics omitted.)
At the hearing, J.R. testified that during the May through December time period, she had not been employed or attended college, nor had attended any program that would remove barriers to employment. When asked what she had done since June 2016 to comply with the nonminor dependent eligibility requirements, she replied "Nothing so far. I'm planning to." The social worker also testified to her extensive efforts to assist J.R. in complying, to no avail. She indicated both she and other staff members "offered assistance . . . to help [J.R.] to complete any and all categories as indicated in my report to rule in or rule out category five; and she was adamant that she was capable and did not want assistance." J.R. also threatened to sue for emotional abuse, and told the social worker she "had no legal right . . . to force her to get evaluated or anything."
As the court in In re Nadia G. explained, the "maintenance of jurisdiction for [the nonminor dependent] cannot realistically be expected to prevent any future harm to her where she has repeatedly rejected nearly all efforts of assistance from the Department and where the Department is working harder than she to maintain dependency jurisdiction." (In re Nadia G. (2013) 216 Cal.App.4th 1110, 1120.) Accordingly, the court did not abuse its discretion in terminating the nonminor dependency.
DISPOSITION
The order terminating the nonminor dependency is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.