Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Anthony Trendacosta, Commissioner. Los Angeles County Super. Ct. No. CK70393
Elise B., in pro. per., for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services.
No appearance for Real Party in Interest (Minor).
WILLHITE, Acting P. J.
INTRODUCTION
Following a review hearing conducted pursuant to Welfare and Institutions Code section 366.22, the juvenile court ordered that a hearing be held on August 10, 2010, pursuant to section 366.26 to develop a permanent plan for the dependent minor, P. B. The child’s mother, Elise B. (Mother), petitions for a writ of mandate to compel the juvenile court to vacate its orders, contending that the status review reports submitted to the juvenile court by the Los Angeles County Department of Children and Family Services (DCFS) contained incorrect information regarding Mother’s efforts to comply with the case plan, and that DCFS failed to provide adequate reunification services. Review by extraordinary writ is the remedy provided in section 366.26, subdivision (l) and rule 8.452, California Rules of Court. Writ counsel for Mother informed this court by letter dated May 18, 2010, that he had reviewed the record and consulted with trial counsel, and determined that he was unable to file a writ petition on Mother’s behalf. (See Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.) Mother filed the writ petition now before us, in propria persona, on May 26, 2010. Real party in interest DCFS filed an answer to the petition. We deny the petition.
All further undesignated statutory references are to the Welfare and Institutions Code.
P.’s alleged father denied paternity and never appeared at the hearings in this matter. He is not a party to the current writ proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Initiation of Dependency Proceedings
In October 2007, Mother’s roommate noticed that Mother appeared extremely disoriented. Mother was holding P., then four months old, and the child was not wearing a diaper. Mother did not seem to realize that she and the child were covered in urine. The roommate took Mother to the emergency room. In the hospital waiting room, staff members saw Mother shaking P. and speaking to her in a very loud voice. Mother said she was hearing voices. The child was detained and a section 300 petition was filed by DCFS. Mother’s treating physician stated that Mother appeared to be suffering from schizophrenia and bipolar affective disorder. Mother admitted to regularly using marijuana, including while she was breastfeeding P., but she said she had a prescription for it. Mother had been arrested and briefly detained for possession of marijuana in early October 2007.
Mother has three older children (half-siblings of P.’s), ages 5, 7, and 8, who had been removed from her care by child protective services in San Bernardino County. The children had been placed with the maternal great grandmother but were removed from that home in early October 2007, due to allegations of physical abuse.
The court ordered P. detained in foster care, ordered Mother not to breastfeed the child unless she received a doctor’s approval, and ordered DCFS to arrange for monitored visits at the hospital. Mother was ordered to engage in individual counseling, drug counseling, and random drug testing. Mother tested positive for marijuana use on October 12, 2007.
Mother Abducts the Child and Remains At Large for 18 Months
One week after P. was placed in a foster home, Mother abducted the child from the foster home during a visit. The juvenile court issued a protective custody warrant for P., and an arrest warrant for Mother. Mother and P. remained at large from late October 2007 until July 2009. When Mother was located and placed under arrest in July 2009, she refused to tell DCFS where P. could be found. A few days later, the maternal great grandmother contacted DCFS. She said an unidentified woman had called Mother’s cousin and indicated she had been caring for P., but could not do so any longer. The maternal cousin retrieved P., and the social worker visited the child shortly thereafter at the maternal cousin’s home. P. appeared healthy, well-groomed, and developmentally on target.
Mother was incarcerated, and charged with child abduction. She also was the subject of an outstanding burglary warrant, and of other outstanding warrants in San Bernardino County.
The Jurisdiction and Disposition Hearing
In its report for the jurisdiction and disposition hearing, DCFS reported that Mother admitted she had been hospitalized seven times, beginning in 2001, but said she had never been diagnosed with schizophrenia or bipolar disorder. She admitted to regularly smoking marijuana, including during her pregnancy with P., but said she received a prescription to use it during her pregnancy because of excessive nausea. Mother received marijuana from a dispensary beginning on June 4, 2007; her prescription expired on March 17, 2008. Mother did not believe in using traditional medical practitioners. P. had been treated and examined by an herbalist, and had not received any immunizations because Mother was opposed to them.
The maternal great grandmother told the social worker that Mother’s mental health problems seemed to worsen after each of her children was born. She denied seeing Mother smoking marijuana, but she had heard that Mother used it. The maternal great grandmother believed using marijuana helped Mother calm down and eliminated the voices Mother sometimes heard.
P. was placed with the maternal cousin. Mother remained incarcerated, and had not visited with P.. DCFS indicated that Mother would be unlikely to resolve her criminal court matters and effectively treat her mental health issues within a reasonable amount of time, and therefore family reunification services were not recommended.
At the adjudication hearing on September 1, 2009, the juvenile court declared P. a dependent of the court, based on sustained allegations that Mother had a history of mental and emotional problems which rendered her unable to provide regular care for the child, that Mother was incarcerated and unable to care for the child, and that Mother had a history of substance abuse and was a daily user of marijuana. The court ordered DCFS to provide family reunification services, including individual counseling, parenting, and random drug testing. Mother was to undergo a psychological evaluation. The matter was continued for a review hearing to be held in March 2010.
The Alternative Sentencing Program
On December 31, 2009, DCFS filed an ex parte application requesting that the court approve a plan by which Mother would serve out her sentence at the Family Foundations Program (FFP) in San Diego, California, which would enable her to have P. placed in her care. The FFP was an alternate sentencing program for mothers of young children who were sentenced to less than three years of incarceration. It was a one-year program that provided housing, child care, medical care, substance abuse treatment, and vocational and life skills training for program participants. It also permitted residents to receive visitors and to occasionally go on outings. The court ordered P. to be placed with Mother, conditioned upon Mother’s acceptance into the FFP.
The March 2010 Status Review Hearing and Mother’s Return to Prison
In March 2010, DCFS reported that Mother had been sentenced to the FFP and was transferred there in January 2010. Shortly thereafter Mother was returned to a prison facility because she had been deemed ineligible for the program. Mother had refused to allow P. to receive immunizations, which were required by the program for children residing there, because she did not think immunizations were healthy or necessary. Also, Mother had believed the program would provide her with free housing for herself and all of her children after she had completed the program. When she discovered that was not the case, she decided that it better served the interests of all of her children if she instead returned to prison. She believed she could be released by May 2010, and could then complete all of the court ordered services and reunify with all of her children. The social worker pointed out that participation in the FFP would allow Mother to immediately reunify with P., and to have visits with her other children. The social worker pointed out that if Mother chose to return to prison and then enroll in the required programs after that, she would have used the same amount of time or even longer to comply with the court orders. Mother maintained that she could begin a program immediately and finish in less than one year.
In addition, Mother stated that she did not need any of the help the program offered. She said she was not a drug addict and did not need a substance abuse program. The social worker reminded Mother that she was ordered by the court to participate in a substance abuse program, and Mother said she had friends who would help her enroll in a drug program. In fact, a staff member at FFP said Mother discussed with other residents the legalization of marijuana and insisted that marijuana was not illegal or wrong to use. The staff member said that it was not appropriate for Mother to have such discussions with other residents, who were in the program for drug counseling. The program was not suitable for Mother if she did not want help with her substance abuse.
DCFS recommended termination of reunification services in light of Mother’s choice to return to prison rather than participate in the FFP, which would have allowed P. to be placed with her. DCFS stated that Mother’s strong views seemed to impair her judgment regarding P.’s best interests. Further evidence of her poor judgment included her abduction of P. (which she did not consider to have been a mistake), her criminal arrest history, and her decision to use marijuana while breastfeeding.
At the hearing, the juvenile court set the matter for a contested hearing on April 13, 2010.
Termination of Reunification Services
Mother was expected to be released from prison in June 2010. DCFS reported that Mother had not engaged in any counseling or parenting programs when she returned to prison, as such programs had apparently been discontinued due to budget cuts. Mother was not disrespectful or rude to the social worker, but she continued to state that she had made the best decision for her children when she decided not to participate in the FFP. She was confident she could complete the court-ordered programs and find suitable housing when she was released from prison. DCFS recommended termination of family reunification services. The social worker noted that Mother was given ample opportunity to reunify with P. by participating in the FFP, but she chose not to do so. The social worker observed that Mother’s strong views seemed to impair her judgment as to what is in the best interest of the child.
Mother waived her appearance at the continued hearing, held on April 13, 2010, although the court had ordered that she be transported to court from prison. Mother’s counsel requested that Mother’s reunification services be extended because she was incarcerated.
The court rejected Mother’s argument that reunification services should be extended due to her incarceration, because she had the opportunity to benefit from such services in the FFP, but decided not to take advantage of that program. In doing so, “She essentially turned down services.” The court stated that Mother’s refusal to cooperate with the program, including her attempt to undermine the substance abuse treatment program by discussing the legalization of marijuana, were symptomatic of Mother’s continuing bad choices.
The court found that continued jurisdiction was necessary, and that returning P. to Mother’s physical custody would create a substantial risk of detriment to the child. It found that DCFS had made reasonable efforts to enable the child to safely return home-including doing “an absolutely first-rate job in investigating the [FFP]”-but Mother had failed to comply with the case plan. The court ordered family reunification services terminated, and set a section 366.26 permanency planning hearing for August 10, 2010.
Mother filed the writ petition now before us on May 26, 2010.
DISCUSSION
Mother’s Supporting Documents Are Not Properly Before Us
The petition now before us was filed by Mother in propria persona, after writ counsel informed this court that he had reviewed the record and consulted with trial counsel, and determined that he was unable to file a writ petition on Mother’s behalf. In support of the petition, Mother filed a “mental health removal chrono” and an AA/NA attendance card. She also asserted that certain relevant documents were not attached because they were unavailable, including a parenting certificate, P.’s prior health records, results of Mother’s three urinalysis tests, and Mother’s medical marijuana prescription.
DCFS filed a motion to strike the “mental health removal chrono” and Mother’s prison AA/NA attendance card on the basis that they were inadmissible hearsay and not properly authenticated, and were not the subject of an appropriate motion to receive additional evidence or take judicial notice. DCFS also moved to strike all references to the other documents mentioned in Mother’s writ petition (but which she stated she was unable to submit because they were not available), because they are not part of the record, were not before the juvenile court at the time the challenged orders were made, and constitute inadmissible hearsay. We granted the motion to strike in its entirety.
Furthermore, Mother filed a letter on July 15, 2010, seeking permission to file additional documents, including a parenting certificate and information relating to the FFP. We denied that request on the date it was filed.
None of the documents on which Mother attempts to rely were part of the record available to the juvenile court to consider when it terminated Mother’s reunification services. As the juvenile court pointed out, Mother may file a petition pursuant to section 388 for a change of order, accompanied by any new evidence, and bring those matters to the attention of the juvenile court for consideration in the first instance.
Request for Dismissal for Insufficiency of the Petition
Mother’s form petition is not accompanied by a memorandum of points and authorities in support of the request for relief. It merely states that DCFS gave the juvenile court incorrect information in its status review reports regarding Mother’s efforts to comply with the case plan, and its own compliance with the case plan. She contends DCFS never facilitated visits, phone calls, or services. Mother asserts the allegations of physical abuse were unproven and unsupported by any medical records. She contends her use of marijuana was pursuant to a prescription, and that the child’s doctor was aware of her marijuana use and apparently did not consider it to be abusive or to carry any ill effects. She asserts she is now in compliance with the case plan, given the results of three urinalysis tests, her completion of drug and parenting classes, and an evaluation that concluded she did not need psychotropic drugs (none of which are adequately supported by documentary evidence properly before us). Finally, she contends that DCFS did not demonstrate the existence of a substantial risk of detriment to P.’s physical or emotional well-being to justify termination of reunification services.
DCFS argues that we should dismiss the matter based on the deficiencies in the writ petition. While we agree the petition is inadequate, we decline to simply dismiss the matter given the importance of Mother’s right to review at this crucial stage of the dependency proceedings.
Mother’s Challenge to Jurisdictional Findings Is Untimely
Mother asserts the allegations that she physically abused P. were unproven and unsupported by any medical records. She further contends she had a prescription to use marijuana, and that P.’s doctor was aware of her marijuana use and was not concerned about it. However, these assertions relate to the juvenile court’s jurisdictional findings, made in September 2009. Mother’s challenge to those findings by way of the present writ petition, filed in May 2010, is untimely. The jurisdictional findings upon which P. was found to be a dependent of the juvenile court became final long ago. (Cal. Rules of Court, rules 5.540(c) and 8.406.)
Sufficiency of Reunification Services
Mother contends that she was not provided with reasonable reunification services. The record does not support this assertion.
Petitioner arguably waived any error by failing to raise this issue at the six-month review hearing in the juvenile court. (In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [failure to challenge juvenile court’s ability to set a section 366.26 hearing when it determined reasonable reunification efforts were not made]; In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Richard H. (1991) 234 Cal.App.3d 1351, 1362.) However, we will consider the merits of petitioner’s claim if only to demonstrate that counsel did not render ineffective assistance by failing to argue the issue. (See Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 748, fn. 5.)
“[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services were provided or offered.” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762; see also In re Julie M. (1999) 69 Cal.App.4th 41, 46.) To that end, “the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult.” (In re Riva M. (1991) 235 Cal.App.3d 403, 414, italics omitted; see also Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554-555.)
As the juvenile court indicated, the social worker did an exemplary job of investigating the alternate sentencing program and helping to arrange for Mother’s placement in that program. The program would have provided Mother with the unique opportunity to have physical custody of P., and to receive all of the court-ordered services she was required to complete. It was Mother’s decision to return to prison instead of remaining at the FFP, and it was ill-considered. The failure here was not in DCFS’s provision of reunification services; rather it was Mother who failed to avail herself of services that normally would not be available to an incarcerated parent. (See § 366.22, subd. (a) [at permanency review hearing, court shall consider efforts or progress made by parent and extent to which she availed herself of services provided, taking into account the particular barriers of an incarcerated parent’s access to court-mandated services and ability to maintain contact with her child].) Mother’s belief that she had a better chance to reunify with all of her children if she returned to prison was simply incorrect, and the social worker made a commendable effort to dissuade Mother from making that choice. The social worker also attempted to help Mother understand that her disagreement with childhood immunizations, and her insistence that she did not need a substance abuse program, were standing in the way of Mother’s ability to reunify with P.. In short, it is clear from the record that DCFS provided or attempted to provide reasonable services to Mother.
Mother also contends that DCFS gave the juvenile court incorrect information in its status review reports regarding Mother’s efforts to comply with the case plan, and about its own compliance with the case plan. However, Mother does not elaborate on this assertion, or cite to the record or any authority in support of this contention. “[A]n appellant must affirmatively demonstrate error through reasoned argument and discussion of legal authority. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Simply hinting at an argument and leaving it to the appellate court to develop it is not adequate.” (Cryoport Systems v. CNA Ins. Cos. (2007) 149 Cal.App.4th 627, 633.) To the extent Mother is arguing that DCFS’s reports were incomplete because they did not mention her efforts to comply with the case plan, she cannot be heard to complain. She did not provide DCFS with any documentary evidence regarding drug tests, a mental health evaluation, or her participation in drug and parenting classes. When she filed her writ petition she indicated these documents were not available. DCFS cannot be faulted for failing to include this information in its reports.
Substantial Risk of Detriment
Finally, Mother contends, again without elaborating, that DCFS did not demonstrate that returning P. to Mother’s custody would pose a substantial risk of detriment to the child’s physical or emotional well-being. Mother does not view her marijuana use as problematic because she asserts she had a prescription to use it. Mother never accounted for the fact that the prescription was apparently provided in order to assist her with excessive pregnancy-related nausea, but she received the prescription about two weeks before P. was born and continued to use it long after that. Her insistence that marijuana use was acceptable and appropriate interfered with her participation in the alternate sentencing program. Indeed, it appears that Mother’s views on marijuana use took precedence over her ability to immediately reunify with P..
The record also contains substantial evidence demonstrating that Mother suffers from mental health problems, if not continuously then on a recurring basis. The maternal great grandmother, Mother’s roommate, and hospital staff attested to witnessing Mother’s delusional behavior. Mother does not acknowledge these problems, or feel that she should receive treatment or monitoring. This undoubtedly presents a risk of serious detriment to P. if she were returned to Mother’s custody.
In addition, Mother’s rash judgment to abscond with P. demonstrated a degree of recklessness that indicates a risk of detriment to the child. Mother continued to maintain that running away with the child was not a mistake. However, as the juvenile court observed, it showed that Mother’s judgment in regard to what was in the child’s best interest was deficient. The evidence regarding risk of detriment to P. was sufficient to support the court’s termination of reunification services.
DISPOSITION
The petition for writ of mandate is denied.
We concur: MANELLA, J.SUZUKAWA, J.