Opinion
A132535
10-05-2011
J.B., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent, SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. Nos. JD093253, JD093253A)
Petitioner J.B. (mother) seeks extraordinary writ relief from a juvenile court order terminating reunification services for her two children, D.B. and J.B., and setting the case for a selection and implementation hearing under Welfare and Institutions Code section 366.26. (Cal. Rules of Ct., rule 8.452.) She contends: (1) no substantial evidence supported the finding that it would be detrimental to return the children to her custody; (2) she was not provided with reasonable reunification services; (3) the children should have been placed in her care subject to supervision and monitoring as a less drastic alternative; and (4) the court should have granted her request for increased visitation. We deny the petition.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
During her childhood and teenage years, mother was subjected to serious abuse, including sexual abuse by her own mother. She has a long history of drug use and mental health issues, including psychotic episodes, and has been diagnosed with post-traumatic stress disorder (PTSD). She has been described as hypervigilant, rigid, and subject to dissociative states.
In 2008, mother became pregnant. She stopped using drugs, with the exception of marijuana and prescription medications, and moved into Ashbury House, a residential treatment center for mentally ill women and their children. Mother gave birth to twins, D.B. and J.B., in January 2009.
Jennifer Curley is a social worker with respondent the San Francisco Human Services Agency (Agency), who acts as a liaison between the Agency and Ashbury House. The director of Ashbury House approached Curley about providing childcare for mother, who was feeling very stressed. On August 4, 2009, Curley opened a voluntary case so mother could receive services from the Agency.
The Agency provided mother with childcare assistance as part of the voluntary services, but mother remained exhausted and unable to cope. In September 2009, when the twins were eight months old, mother told Curley that they should be placed in foster care. Though Curley convinced mother to have the staff at Ashbury House watch the twins for a couple of days before she made that decision, mother called later that day and said she was hearing voices telling her that she was sexually and physically abusing her children. Mother was "tender and sweet" with the twins, and there were no signs of actual abuse. The twins were taken into protective custody on September 10, 2009, and the Agency filed a dependency petition on September 14, 2009.
The children could not be placed with a noncustodial parent, as their father has not been identified.
Mother became psychotic and relapsed on alcohol and crack cocaine on the same day the twins were taken into foster care. She was placed in a detoxification program for two weeks and then returned to Ashbury House, where she appeared flat and sedated. Mother continued to have auditory hallucinations and thought they might have been caused by an antidepressant medication, though she had been exhibiting some signs of psychosis before the medication was prescribed.
During the months following the removal of the twins, mother received mental health treatment. She was taking several prescription medications (including Depakote, Rispiridal, and Klonopin) and, despite her doctors' warnings, used marijuana to ease her anxiety. Mother was ambivalent about her ability to care for the twins and in January 2010, considered giving them up for adoption. After she learned that the maternal grandmother would not be considered as a caregiver for the children (due to the grandmother's abuse of mother when mother was growing up), mother decided to try to regain custody.
On May 11, 2010, mother submitted on an amended version of the dependency petition, which alleged that her mental health problems greatly impacted her ability to safely care for the twins. The court declared the twins dependents under section 300, subdivision (b), removed them from mother's custody, and approved a reunification plan that included components of drug treatment, counseling and therapy, parenting education, and suitable housing. After considering an addendum report filed by the social worker, the court also ordered mother to submit to a psychological evaluation.
In a December 2010 report prepared for the status review hearing (§ 366.21, subd. (e)), social worker Curley recommended that the children remain in foster care and that reunification services be terminated. The report indicated that mother's affect was improving and that she had made a "herculean" effort to regain custody by managing her psychiatric symptoms, but that "given the seriousness of her diagnosis and the history of her very slow recovery from her psychotic episode, we cannot conclude that this brighter period signals a permanent stable mental condition." Mother had moved into the home of a friend, having reached the 18-month limit that she was permitted to stay at Ashbury House, and was paying her friend rent. As a consequence, she had lost her status as a homeless person and was not eligible for housing through other programs. The friend with whom mother was living would not allow the children to live in her home permanently.
Although designated a "six-month" status review report, the twins had been in foster care for almost 15 months and were one month shy of their second birthday.
According to the social worker's report, mother had been unable to increase her visits with her children until September 2010. Visitations had been taking place at Ashbury House through a special arrangement made after mother moved out, and mother had declined offers to take the children by herself when those visits ended. Mother had been offered the opportunity of day-long visits so she could demonstrate her ability to care for the children, but had not been able to make the necessary arrangements. As the six-month period for reunification passed, mother began to panic about her time being up and began wanting to see the children for longer periods. She needed a tremendous amount of support just to maintain her own mental health, and her service providers believed she could not care for the twins unassisted.
On February 1, 2011, mother filed a petition for modification of a prior order under section 388 (form JV-180), seeking an increase in visitation to 18 hours a week, including overnight visitation. The petition alleged that the court had ordered a minimum of six hours a week visitation with discretion to increase the length of the visits, that visits of 18 hours a week had been offered in late 2010, but that social worker Curley had since reduced the amount of visitation.
Prior to the review hearing, Dr. Hugh Molesworth submitted his psychological evaluation of mother, which was based on psychological testing, interviews with mother and her mental health providers, and a review of her mental health records. He diagnosed her as suffering from chronic PTSD, psychosis not otherwise specified (currently controlled with medication), a history of poly-substance dependency, amphetamine and cocaine dependence (in remission), cannabis dependence, and maladaptive personality traits. The report concluded that mother was vulnerable to further psychotic episodes and that while she was commendably engaged in treatment, "her psychopathology will not disappear." She had a "wild and crazy" history, but because of her substance abuse, it was hard to tell how much of it was the product of underlying personality traits. In Dr. Molesworth's opinion, mother would need ongoing support to parent her children outside of a supervised setting.
At the contested review hearing, which began on March 7, 2011 and was finally completed on June 13, 2011, Dr. Molesworth was called as a witness. He testified that mother's PTSD went beyond the "more classical symptoms" and included "significant problems with regulating emotions and marked problems with interpersonal relationships." She was at a high risk of future psychotic episodes and he was concerned that her continued use of marijuana increased that risk, as well as her risk of relapse with other drugs. Her Global Functioning Assessment score (GAF) was 50 to 55, indicating a moderate to severe degree of impairment, which would make it difficult for her to hold down a job, maintain relationships, and manage daily activities such as parenting.
Dr. Molesworth believed that mother could not parent her children without support and assistance, that she could not be the primary caretaker, and that her struggles with depression, anxiety and psychotic thinking impaired her ability to make decisions. In his opinion, there would be a "moderate to high risk" that mother's parenting ability would collapse if the children were returned to her, which would in turn necessitate intervention by child welfare services. Her preoccupation with her own problems could distract her from monitoring the children: "I could see [] a range of negative consequences occurring. One is, due to her problems with decision making, she may, you know, make bad judgments, poor decisions, act on impulse with her kids in ways that, you know, are negative. For example, she could take the kids to the park and become preoccupied with her own issues and [] the kids might wander away. [¶] She could - decisions in the home, like leaving, basic things like leaving kitchen appliances on or water boiling in the kitchen while she might be preoccupied with her own mental health state."
Alisa Birgy, the program director of Ashbury House, had almost daily contact with mother while she was living there. She testified that she was concerned about mother's ability to parent, given that mother was easily overwhelmed and could not deal with unexpected changes. Mother had difficulties soothing her children and was not able to independently care for them during her visits. In Birgy's opinion, mother was not ready to reunite when she left Ashbury House after 18 months.
Social worker Curley testified that when the children were initially removed, she thought it would be temporary and so encouraged numerous and lengthy visits to build mother's confidence. Mother could not handle the visits, so they were reduced to enable her to focus on bettering herself. It was only recently that mother had been willing to increase visitation, but Curley did not believe there was enough time left for mother to demonstrate that she was competent to care for the children. On a recent visit with the children at a park, mother was not able to address several safety concerns, at one point leaving J.B. at the edge of a water fountain to chase D.B.
Curley recognized that mother loved the twins and had worked hard, but she believed mother's severe mental illness continued to impair her ability to parent. She acknowledged that mother had participated in the reunification services offered to her and had recently quit using marijuana, but did not believe additional services would enable mother to independently parent the children. Mother had entered a program with Women's Hope Project, an affiliate of Walden House.
Curley was also concerned that mother had decided against adoption and decided to try to reunify after she was told her own mother would not be considered for placement. The maternal grandmother had sexually abused mother when she was growing up, and mother did not seem to understand why it would not be appropriate to place the twins with her their grandmother.
Curley explained that she had been eager to offer mother increased visitation, and increased the time to 18 hours per week in September 2010. She had reduced the time to six hours per week because (1) mother's drug counselor told Curley that mother was not "being straight" with her; (2) Dr. Molesworth had expressed concerns about mother while he was conducting his evaluation; and (3) mother returned the children to the foster parent with wet clothing, bleeding diaper rashes and smelling strongly of cigarette smoke. Curley was also concerned that mother had rejected a housing opportunity with Harbor House that would have required her to stop smoking marijuana and that visits at Ashbury House had been discontinued because the children were crying too much.
The foster mother submitted a declaration saying that one child had been returned to her with a wet tee shirt and that mother had apologized. The foster mother concluded, "I have seen [mother] with her children. She is always loving and never mean and there are no signs that she ever neglects them after her time with her."
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Beginning in December 2010, mother's visits with the twins were supervised through the La Raza program. Although the supervisor from La Raza wrote generally positive reports about those visits, Curley discounted them because the supervisor had taken it upon himself to act as a "second parent," rather than simply observing mother. As a result of this, the visits were moved to a different agency.
Based on this evidence, the trial court found that reasonable efforts had been made to help mother overcome the problems leading to removal of the twins, but there would be a substantial danger to the twins if they were returned home at that time. Reunification services were terminated and the case was set for a hearing under section 366.26 to select the permanent plan. The court denied mother's petition for increased visitation under section 388 and granted a petition filed by the Agency to decrease visitation to ease the twins' transition into an adoptive home.
Mother filed a timely notice of intent to file a writ petition.
DISCUSSION
I.
Mother argues that the court should have ordered the children returned to her custody, rather than ordering a selection and implementation hearing under section 366.26. We disagree.
At the combined six-month/12-month/18-month status review hearing that was ultimately held, the juvenile court was required to order the return of the twins to mother unless it found, "by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment." (§§ 366.21, subds. (e) & (f); 366.22, subd. (a).) We will uphold a juvenile court's detriment finding if it is supported by substantial evidence. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401.)
Viewed in the light most favorable to the judgment (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947), substantial evidence supports the conclusion that mother, though loving and well-meaning, was unable to assume custody of her twin toddlers. Dr. Molesworth concluded that given mother's history, there was a high risk she would suffer a future psychotic episode, which would, in turn, cause her parenting ability to collapse. The social worker reported that mother did not always recognize and address safety concerns without assistance. The director of Ashbury House, where mother resided for 18 months, reported that mother was often overwhelmed during visits, which had to be moved to another location because the children's behavior was so disruptive.
It is undisputed that mother has participated in her reunification plan, taking parenting classes, engaging in therapy, and abstaining from drug use (with the exception of prescription drugs and, until recently, marijuana). Mother and her twins obviously love each other. But the picture that emerges is of a young woman who needs significant help to care for herself and her young children. It is commendable that she has sought this help, but her compliance with aspects of her reunification plan does not itself render her capable of becoming the primary caretaker.
" 'The harder cases are, like the one before us, where the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent. The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes, or what have you) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good). These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent.' " (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 706, later italics omitted; see also In re Brian R. (1991) 2 Cal.App.4th 904, 913-915 [though father had made substantial progress, psychologist's conclusion that he did not have the capacity to parent was based on testing and clinical evaluations and was not unduly speculative]; contrast Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1750-1752 & fn. 7 [social worker's opinion that mother, who was not mentally ill, had not "internalized" material from parenting classes, was too vague to constitute substantial evidence of detriment].)
Mother suggests her case is similar to David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B.), in which the appellate court granted writ relief from an order terminating the father's reunification services after concluding that the child welfare agency had failed to prove that return of the child would be detrimental. We are not persuaded. In David B., the father was a nonoffending parent who sought to reunify with his two-year-old daughter after the mother's drug use and mental health issues brought the child into the dependency system. (Id. at pp. 774-775.) At the 18-month review hearing, the social worker recommended that the case be set for a hearing under section 366.26, focusing on "minor quibbles" concerning the father's parenting ability, illiteracy and concerns that the minor had not fully bonded with him during 18 months of steady visitation. (Id. at p. 773.)
The trial court followed the social worker's recommendation, but the appellate court granted father's petition for extraordinary relief. (David B., supra, 123 Cal.App.4th at pp. 774, 778.) It explained: "Although the trial court properly rejected some of SSA's concerns about [father], it did agree with SSA's assessment that [father] lacked an understanding of 'basic [parenting] concepts,' because he asked too many questions about matters the court assumed every reasonable parent would instinctively know. It also agreed that the fact [father's] brother-in-law had once committed an act of domestic violence involving his own daughter meant [the minor] could not be released to reside with [father] in that home. . . . [¶] . . . There is no support in the record for the conclusion [father] lacks basic parenting abilities in any sense that would indicate danger to [the minor]. . . . [¶] As for the concern about releasing [the minor] to reside in the same home as [father's] brother-in-law, we are not convinced that the brother-in-law's one confrontation with his own teenage daughter, more than three years ago, indicates any general tendency toward child abuse, and therefore a significant danger to [the minor]." (Id. at p. 773.)
Whatever concerns the social worker might have had about the father in David B., the evidence in that case did not establish any shortcomings that made it dangerous to return the children to his care. Here, by contrast, mother suffers from a major mental illness that, according to experts, impairs her ability to parent and would place her children at risk if they were returned. This is more than a "minor quibble" about her parenting skills. Substantial evidence supported the trial court's ruling that return would be detrimental.
II.
Mother next challenges the reunification services provided by Agency. We reject the claim, because substantial evidence supports the juvenile court's finding that reasonable services were provided. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625-626.)
Reunification services are presumptively limited to six months when a child is under three years of age at the time of removal, but may be provided for up to 24 months in exceptional circumstances. (§ 361.5, subd. (a)(1)(B), (a)(3) & (a)(4).) In this case, mother received 21 months of reunification services between the time of the twins' removal in September 2009 and date of the review hearing in June 2011, including referrals to the Infant Parent Program, twin/multiple support group, the Family Relations Group, and consistent supervised visits. This was in addition to the voluntary services that mother received before the children were removed. Mother also participated in mental health services that were already in place.
The Agency was required to prove by clear and convincing evidence that the services offered were reasonable, but it was not required to prove they were perfect. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Mother argues that services were inadequate because Dr. Molesworth's psychological evaluation was not completed until February 2011, too late for it to have been used for treatment purposes. We do not agree. Mother initially objected to the psychological evaluation, and it was delayed due to scheduling difficulties on both sides. Dr. Molesworth testified that the delay was actually an advantage because it enabled him to get a more in-depth picture of mother's mental state over time. His primary diagnosis—that mother suffered from a severe form of PTSD—was not out of step with what her mental health providers had believed up until that point. Mother speculates that if the evaluation had been completed earlier, reunification services could have been more specifically tailored toward preventing and detecting a relapse in her drug use or mental state, but in light of her history, it is inconceivable her therapy did not address these issues.
Mother also complains that the Agency did not provide her with help in caring for her children during her visits with them, claiming that if such help had been provided, the social worker would have been more impressed with her own competency in caring for the twins. The presence of another person to assist with child care during visits would not have demonstrated that mother was able to safely care for the children. In any event, mother did receive considerable assistance during visitation: she was allowed to visit at Ashbury House, where staff and other residents were available; she took the children to the home of her friend where she was living after she left Ashbury House; and she was given visits with a supervisor through La Raza and then at A Better Way.
Finally, mother argues that more visitation should have been permitted. The record shows the social worker attempted to increase the number and duration of the visits, but mother declined until fairly late in the dependency, focusing instead on her own mental health issues. We cannot conclude that the Agency did not provide reasonable visitation or that a few extra hours a week would have changed the trajectory of this case.
III.
Mother argues that in lieu of setting a hearing under section 366.26, the court should have considered returning the children to her while providing additional protective services. We find no abuse of discretion. (In re N.M. (2003) 108 Cal.App.4th 845, 852 [order regarding provision of social welfare services reviewed for abuse of discretion].) Though a juvenile court may order a child returned to the parent subject to a family maintenance plan when the maintenance plan would be sufficient to protect the child (see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 295-296), the evidence in this case supports the trial court's conclusion that the twins could not be safely returned due to mother's ongoing mental illness.
IV.
Mother argues that the trial court should have granted her February 2011 petition under section 388 to increase visitation to 18 hours a week, including overnight visits. She complains that the social worker effectively required her to gradually increase visits over time in order to regain custody, but then failed to accommodate her requests for more visits when she was able to meet this requirement. We disagree.
A juvenile court order may be changed, modified, or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist; and (2) the proposed change would promote the best interest of the child. (In re S.J. (2008) 167 Cal.App.4th 953, 959.) The petition is addressed to the sound discretion of the juvenile court judge, whose ruling will not be set aside on appeal absent a clear abuse of discretion. (Id. at pp. 959-960; see also In re B.C. (2011) 192 Cal.App.4th 129, 141.)
Mother does not identify any changed circumstances that would have supported an order increasing visitation and allowing overnight visits. Nor does she explain why such an order would have been in the best interests of the children. Dr. Molesworth's testimony supported the conclusion that mother remained a safety risk to her children if she was left without assistance, and the trial court did not abuse its discretion in denying the petition.
DISPOSITION
The petition is denied. This decision is final immediately as to this court. (Cal. Rules of Ct., rules 8.454(a), 8.490(b)(3).)
NEEDHAM, J. We concur.
JONES, P. J.
BRUINIERS, J.