MARY v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

No appearance by Respondent.

Children's Law Center–CLC 1, Sophia Ali and Jessica Paulson for Minors.

Mary O. (“Mother”) challenges orders of the juvenile court terminating reunification services for her son E.B. (born July 2009), ordering no reunification services for her daughter M.O.¹ (born September 2010), and scheduling a permanent plan hearing for both children.  (Wel. & Inst.Code, § 366.26;  Cal. Rules of Court, rule 8.452.) ²  Mother contends that she is entitled to reunification services and that there is no substantial evidence to the contrary.³

As we find substantial evidence supports the juvenile court's finding that Mother failed to comply with court-ordered treatment programs, and there is no substantial probability that either E.B. or M.O. could be returned to Mother within six months, we deny the writ petition.⁴

BACKGROUND

2009

On August 25, 2009, the Department of Children and Family Services (“Department”) filed a petition pursuant to section 300, alleging that Mother periodically failed to care for E.B. because of her mental health, her failure to take her prescribed medications, and her hospitalization for her mental health condition.   The juvenile court conducted a hearing on the same day and ordered E.B. detained with monitored visitation for Mother.

The August 25 detention report states that Mother received prenatal care for E.B. for only a few months;  she did not arrange a consultation with a pediatrician after his birth;  when she was living in a shelter, she would leave him alone on the second floor while she went to talk on the telephone on the first floor;  and she engaged in prostitution.⁵  Mother told the children's social worker (“CSW”) Julie Byon that she refuses to return to Illinois to live with her parents,⁶ because she “needs to be in California because protection dogs are legal here.”   Mother told Byon that she was paying $450 per month to keep her dogs in a kennel, pays for a storage unit for her clothing, and chooses not to use that money to rent an apartment for E.B. and herself.

Teresa Murphy of the Precious Life Shelter, where Mother and E.B. had been staying, told the CSW that she was concerned about Mother, who would leave E.B. unattended, “ ‘had a lot of crazy stories that were like fantasy stories,’ ” and would walk around partially nude.

The September 17, 2009 jurisdiction/disposition report shows that Mother's mental health problems were first recorded in 2001.   The report included documentation that in 2006 Mother was hospitalized as suicidal.   She was diagnosed as having a probable bipolar disorder and was described as “very psychotic.”   Mother denied that she suffered from bipolar disorder, stating that the hospital manipulated its records to defraud MediCal.

Mother reported that she had been involuntarily hospitalized at USC in December 2008, because the Rampart Division retaliated against her for a newspaper report about her service dog.

On October 2, the juvenile court conducted a contested hearing at the conclusion of which the juvenile court declared E.B. a dependent of the court, ordered him to be suitably placed, and ordered reunification services for Mother.   The reunification services were to include monitored three-hour visits, three times each week;  individualized counseling to address Mother's mental health needs and parenting skills;  and submission to psychological/psychiatric assessment (with possible medication management).

Mother complied with the plan, visiting E.B. at the foster family agency three times each week, participating in individual counseling, and enrolling in parenting education.

The February 2010 progress report showed that Mother was participating in weekly mental health care services at Cornerstone and was in compliance with her medication regimen.

2010

In March 2010, Cornerstone provided an evaluation completed by a psychiatric nurse;  the evaluation concluded that Mother suffers from schizo-affective or mood disorder, for which she had been prescribed Seroquel, Abilify and Prozac.   On March 12, Mother reported to CSW Therese Schmoll that, because Mother was pregnant, the psychiatric nurse had advised Mother to substitute Zoloft for those medications.   On March 15, CSW Schmoll telephoned Mother and referred her for an evaluation through All Care Psychological Services.   Mother responded that she did not need an evaluation, because the Department planned to “ ‘sell’ ” her baby.   She hung up on the social worker.   On March 22, Mother told CSW Schmoll that she would be taking Lexapro.

On April 29, E.B. was placed with foster mother Jeri D. Jeri's adult daughter Tanya J. and Tanya's husband Brad J. “fell in love with him immediately” and began to take steps to become his foster parents and to adopt him.

On July 27, the juvenile court conducted a contested hearing.   Pregnant with M.O., Mother discontinued her prescribed psychotropic medication.   She began acting out, acting aggressively toward others and inappropriately with E.B., sometimes leaving him alone to make telephone calls, unable to prepare his formula properly, and overfeeding him.   At the conclusion of the hearing, the juvenile court ordered continued reunification services, requiring the Department to refer Mother to a hands-on/interactive parenting class, assess her living arrangements, and obtain a progress report from Mother's therapist.   The court ordered Mother to submit to an evaluation through the USC Institute of Psychiatry and Law.

Mother did not submit to an evaluation through USC, nor did she follow up on the Department's referrals for hands-on parenting classes.   Mother stopped seeing E.B. regularly, seeing him only twice in August 2010.   Mother later explained that her obstetrician had ordered her on bedrest, thus preventing her from visiting E.B. Mother did not explain why she did not see E.B. after she was released from bedrest after M.O.'s birth.

Via letter dated August 30, an employee of the Children's Bureau, where Mother's monitored visits with E.B. took place, complained to the Department that Mother acted violently in E.B.s presence and that the staff feared for the safety of other clients, including children, when Mother was at the facility.   Thereafter, Mother's visits with E.B. were scheduled to take place at a different facility.

M.O. was born in September 2010.   Although Mother spoke with her therapist by telephone about one week following the birth, Mother cut off all further contact with her therapist.   By October 5, Mother had left the shelter where she and M.O. had been staying.

From October 5, when Mother left the shelter, until December 22, when she was arrested by authorities, Mother refused to inform the Department of M.O.'s location, despite the repeated requests of Department CSWs.

On October 8, the juvenile court issued an order that authorized the Department to remove M.O. from Mother's care and to have M.O. detained.

Mother requested unmonitored visits with E.B. Pilar Ma‘at Grant, LM [midwifery], B. Msc. [Bachelor of Metaphysical Sciences], who operates Birthmama Midwifery, wrote to the Department, stating that Mother “was very attentive and loving to her newborn M.O. and that [Mother] needed breastfeeding support and education, afterbirth therapy that would include some herbal and nutritional therapy to prevent [p]ostpartum depression (Baby Blues) and enhance her knowledge so that she is successful at breastfeeding and parenting.”   Francesca A. Jacobs, a tribal advocate, who has never met Mother, but communicated with Mother via what she describes as “telecommunications,” wrote that Jacobs “received articulate communications” from Mother, and “[a]ll communications [from Mother] were of extreme mental clarity.”   It is not known what Jacob's education, experience, or licensing might be.

On October 14, the Department filed a petition as to M.O., alleging that Mother, because of her mental health problems and refusal to take prescribed medication, was unable to care for M.O. and that E.B. was a dependent sibling.   A detention hearing was conducted that same day, without the presence of Mother or M.O. The juvenile court again ordered M.O. to be detained and issued an arrest warrant for Mother.

On October 18, E.B. was placed with Tanya and Brad, who take him for regular check-ups and work to assist him in developing his gross motor and language skills.

Deidre Duncan, self-described as a “professional advocate for community residents in Los Angeles County that [sic ] are in need of local resources,” stated in a November 5, 2010 letter that Mother was staying in a “safe house” provided by a “nonprofit” that is not otherwise named or identified in the letter.   Duncan goes on to state in the letter that the location of the house “is protected under Penal Code section 142 under the Victim[s] Bill [o]f Rights,” but Duncan does not state how Mother is a victim, nor does Duncan explain how Penal Code section 142, which covers arrests and confinement in county jails and institutions, has any bearing on the juvenile dependency matter.   In an undated letter, Duncan names the nonprofit as “Safe Haven Shelter.”

Via letter dated November 15, Joseph V. Angarella, Ph.D., a “Registered Psychological Assistant,” ⁷ notified the Department that Mother was in his care and had participated in two 50–minute psychotherapy sessions and agreed to comply with all treatment requirements.   Angarella did not provide any details as to his educational background or experience, nor did he set forth a diagnosis, prognosis or treatment plan.

On November 17, maternal grandparents K.O. and W.O. filed requests to place the children in their custody.

On December 6, the juvenile court conducted a review hearing, advising Mother's counsel that if Mother did not turn M.O. over to the Department within 72 hours, the juvenile court would conclude that Mother had willfully abducted M.O. and would deny reunification services, proceeding directly to a permanent plan hearing.

On December 22, authorities arrested Mother and detained M.O.

In a December 29 letter, midwife Grant states that Mother continues to attend classes and “therapies” and that Grant has “increased her relaxation and meditation classes as to help her with managing and controlling her anger as well as to prevent postpartum depression.”   Via letter dated January 15, 2011, Angarella notified the Department that Mother had attended eight 50–minute psychotherapy sessions.   He states that Mother “does not currently meet the diagnostic criteria for a mental disorder” and that she does not demonstrate “an imminent or marked risk of violence or harm to herself or others.”   Angarella does not report on Mother's ability to take care of herself or her children nor does he report on her parenting skills.

2011

On February 1, 2011, Mother appeared in court.   The juvenile court granted the motion of Tanya and Brad for de facto parental status of E.B. The juvenile court ordered weekly, monitored visits between Mother and M.O.

On February 17, the Department filed a petition pursuant to section 300 as to M.O., alleging, inter alia, that Mother had secreted M.O.

The February 24 “Last Minute Information for the Court,” prepared by CSW Kristin Parisi, shows that Parisi learned Mother planned to move to Pittsburgh to live with a friend.   The Interstate Compact on the Placement of Children ⁸ assessment had been completed for maternal grandparents, in Illinois, with the State of Illinois's approval of placement of both children in the home.   Mother had one, one-hour visit with M.O. and refused to commit to a visitation schedule.

The March 3 “Last Minute Information for the Court,” prepared by CSW Parisi, includes a recommendation that both E.B. and M.O. be placed with their maternal grandparents in Illinois.

On March 7, the juvenile court conducted a contested hearing as to both minors.   Mother still had not submitted to a psychological assessment at USC pursuant to Evidence Code section 730.   Although assessments showed that E.B. suffered from developmental delays, Mother refused to authorize the Regional Center to conduct further assessments to develop assistance plans for him.   However, de facto parents Tanya and Brad were working with E.B. to overcome his developmental delays in language and gross motor skills.

At the hearing, Mother testified that she was not taking her psychotropic medication, because her counselor told her that she did not need the medication.   She testified that she did not consult with a psychiatrist.

After August 2010, Mother did not visit E.B. regularly, nor did she call E.B.'s foster parents to request visits or to inquire as to his well-being.

M.O. was ordered to be placed with maternal grandparents, and E.B. was ordered to remain placed with de facto parents Tanya and Brad.

DISCUSSION

Mother has substantial mental health problems, which she has been unable to manage in such a way that she can care for her children.   It is clear from the record that Mother will be unable to reunify with her children within an additional six-month period.

E.B.

Reunification services in excess of 18 months

Section 361.5, subdivision (a)(4), allows a six-month extension beyond 18 months only if the juvenile court finds that the child “will be returned and safely maintained in the home within the extended time period.   The court shall extend the time period only if it finds that it is in the child's best interest to have the time period extended and 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․”

“ ‘During the final period, which runs from the 12–month review hearing to the 18–month review hearing [citation], services are available only if the juvenile court finds specifically that the parent has “consistently and regularly contacted and visited with the child,” made “significant progress” on the problems that led to removal, and “demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs.”  [Citations.]’ ”  (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1058.)

Reunification services as to E.B. have exceeded the maximum 18–month period.   Within that period of time, Mother failed to visit or contact E.B. consistently and regularly, failed to submit to court-ordered psychological testing through USC, failed to participate in court-ordered hands-on parenting classes, refused to authorize the Regional Center to assess E.B.'s development, and refused to take her psychotropic medication.   There is little, if any, probability that E.B. can be returned to Mother's physical custody within six months.   Accordingly, reunification services as to E.B. were properly terminated.

M.O.

Failure to reunify with a sibling

A parent's failure to reunify with a sibling coupled with the parent's failure to make a reasonable effort to treat the problems that led to the removal of the sibling supports termination of reunification services.

Section 361.5, subdivision (b) reads in pertinent part:  “(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶] ․ [¶] (10) That the court ordered termination of reunification services for any siblings ․ of the child because the parent ․ failed to reunify with the sibling ․ after the sibling ․ had been removed from that parent ․ pursuant to Section 361 and that parent ․ is the same parent ․ described in subdivision (a) and that, according to the findings of the court, this parent ․ has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling ․ of that child from that parent․”

“Thus, section 361.5, subdivision (b)(10) has two prongs or requirements:  (1) the parent previously failed to reunify with a sibling of the child;  and (2) the parent failed to make reasonable efforts to correct the problem that led to the sibling being removed from the parent's custody.  [¶] In enacting section 361.5, subdivision (b)(10), ‘the Legislature has made the decision that in some cases, the likelihood of reunification is so slim that scarce resources should not be expended on such cases.’  [Citation.]  ‘Inherent in this subdivision appears to be a very real concern for the risk of recidivism by the parent despite reunification efforts.’  [Citation.]”  (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96;  italics in original.)

Contrary to Mother's interpretation of section 361.5, the juvenile court was not automatically required to give a parent six months for additional reunification services as to one child after having failed to reunify with an older child after 18 months.   The purpose of section 361.5 is “to provide a parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings;  ․ not ․ to create further delay so as to allow a parent, who up to that point has failed to address his or her problems, another opportunity to do so.”  (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.)

The record amply establishes that Mother failed to comply with court-ordered evaluation and therapy at a licensed institution, failed to participate in court-ordered hands-on parenting classes, and did not make a reasonable effort to treat the problems that led to E.B.'s removal:  instead of addressing her long-standing and severe mental health problems by consulting with a psychiatrist or submitting to a psychological evaluation as mandated by the juvenile court, Mother saw a midwife and a student psychologist, neither of whom appears to have the education, experience or license to determine whether Mother's mental illness is treatable through medication and neither of whom is licensed to prescribe such medication.

DISPOSITION

The petition for an extraordinary writ is denied.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. The identities of E.B.'s father and M.O.'s father are unknown..  FN1. The identities of E.B.'s father and M.O.'s father are unknown.

FN2. Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code..  FN2. Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.

FN3. The minors' “great great great grandmother” Edna McCoy, born 1914, was a member of the Baker Band of the Cherokee Tribe.   The juvenile court ordered the Department to notify the Cherokee and Powhatan Tribes.   Mother does not set forth any challenges under the Indian Child Welfare Act. (25 U.S.C.A., § 1901 et seq.).  FN3. The minors' “great great great grandmother” Edna McCoy, born 1914, was a member of the Baker Band of the Cherokee Tribe.   The juvenile court ordered the Department to notify the Cherokee and Powhatan Tribes.   Mother does not set forth any challenges under the Indian Child Welfare Act. (25 U.S.C.A., § 1901 et seq.)

FN4. E.B. and M.O. request that Mother's petition be denied.   The Department of Children and Family Services takes no position as to the challenges to M.O. Tanya J. and Brad J., E.B.'s de facto parents, join in the Department's answer..  FN4. E.B. and M.O. request that Mother's petition be denied.   The Department of Children and Family Services takes no position as to the challenges to M.O. Tanya J. and Brad J., E.B.'s de facto parents, join in the Department's answer.

FN5. In 2006, Mother was arrested for prostitution..  FN5. In 2006, Mother was arrested for prostitution.

FN6. At that time, maternal grandparents declined to take E.B. due to financial problems..  FN6. At that time, maternal grandparents declined to take E.B. due to financial problems.

FN7. In California, a “Registered Psychological Assistant” is unlicensed and is allowed to provide limited psychological services only while under the direction and supervision of a licensed supervisor.  (Board of Psychology, Dept. of Consumer Affairs. http:// www.psychboard.ca.gov/licensee/sup-psych-assist.shtml.).  FN7. In California, a “Registered Psychological Assistant” is unlicensed and is allowed to provide limited psychological services only while under the direction and supervision of a licensed supervisor.  (Board of Psychology, Dept. of Consumer Affairs. http:// www.psychboard.ca.gov/licensee/sup-psych-assist.shtml.)

FN8. “ ‘The purpose of the ICPC is to facilitate cooperation between participating states in the placement and monitoring of dependent children.  [Citation.]’ ”  (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 458.).  FN8. “ ‘The purpose of the ICPC is to facilitate cooperation between participating states in the placement and monitoring of dependent children.  [Citation.]’ ”  (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 458.)

ROTHSCHILD, Acting P. J. JOHNSON, J.