Filed 7/23/14 L.C. v. Super. Ct. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



L.C.,

         Petitioner,                                                     E061091

v.                                                                       (Super.Ct.No. SWJ003525)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,

         Real Party in Interest.




         ORIGINAL PROCEEDINGS; petition for extraordinary writ. John M.

Monterosso, Judge. Petition denied.

         Marla C. Mahoney for Petitioner.

         No appearance for Respondent.




                                                             1
       Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Real Party in Interest.

       Petitioner L.C. (Mother) challenges the ruling of the trial court terminating

services and setting a selection and implementation hearing (Welf. & Inst. Code,

§ 366.26)1 with respect to her children, minors T.C. and Tr.C.2 She argues that the trial

court erroneously found that returning custody to her would be detrimental, and also that

she was not offered reasonable reunification services. We disagree, and deny the

petition.3

                                 STATEMENT OF FACTS

       The subject minors, T.C. and Tr.C. (the minors), were born in 2004 and 2006,

respectively. The Department of Public Social Services (Department) filed the initial

petition on September 26, 2012, and in essence alleged that the minors had no one to care

for them because Mother had been hospitalized under a section 5150 mental health

evaluation hold.

       Although the children appeared well cared for and expressed no concerns about

Mother, Mother had been taken into medical custody after calling police about pictures

       1   All subsequent statutory references are to the Welfare and Institutions Code.

       2   We use this format because the first names of both children begin with the letter
“T.”

       3 The minors are placed with a relative who apparently remains confidential, and
the expectation is that a legal guardianship will be established. The trial court ordered
continued visitation.



                                              2
on her cell phone. She then drove her vehicle at a high rate of speed towards a deputy

sheriff, and then got out of her car rambling about the photos, her cell phone, and the man

supposedly in the photos who “can walk through doors without opening them and he has

red and blue eyes, with faces on the back of his head that looks like [c]ourtroom

[j]udges.” She had also recently been involved in a physical altercation with her mother.

Mother called the Department and made rambling, incoherent comments apparently

relating the person in the photos to the children’s father, who had not been in their lives

since before Tr.C. was born.

       When contacted, the father reported that Mother had “‘major mental health

concerns’” and could be violent towards him, animals and the children, claiming that she

had once tried to suffocate T.C. He also reported that Mother sometimes claimed that

“Kevin,” not she, had committed the violent acts.

       Mother called the social worker again the next day, speaking erratically and

jumping from topic to topic and blaming police for her apprehension. She said she had

“told him [the officer] it was Brandon Johnson [the minors’ father], this guy is capable of

hurting anyone and he does not care. This is the type of person that can get into your

house without keys . . . !” She admitted using multiple medications for pain and that “I

don’t get wasted but I get off balance” before moving on to claim that “people on the

baseball league called in a false report saying that I was hitting on their husbands. I

called an attorney and said ‘This is harassment.’”




                                              3
       When the social worker, in response to Mother’s question about getting her

children back, advised her to get a mental health evaluation and any recommended

medications, Mother snapped “What makes YOU tell me about mental health . . . I feel

that you’re treating me, judging me. You’re making me feel that this might be a long

time but I want my kids now. I will not have any money because I only get Cash Aid and

now I won’t . . . .”

       Mother’s prior history with child protective services included substantiated

allegations of emotional abuse and general neglect in 2003 and 2004, including threats to

drive off a cliff with T.C., which Mother made at a family law court hearing. T.C. was

made a dependent child at that time and in 2006 Mother regained full custody. Mother

has three older children who live with their father.

       After finding the minors to fall within section 300, subdivision (b), Mother was

ordered to undergo a psychological and psychiatric assessment, to participate in

counseling, to complete a parenting class, and to submit to random drug testing as well as

be evaluated by a substance abuse treatment program.4

       The six-month report was filed on May 29, 2013. During the reporting period

concerns had arisen based on reports of fires at Mother’s residence, apparently resulting

from a defective gas line. Mother had reported that she was forced to orally copulate one


       4 The court, perhaps inadvertently, did not order the psychological/psychiatric
evaluation at the time of the jurisdictional findings on December 11, 2012; the omission
was corrected by the order of March 11, 2013.



                                             4
of the firefighters. A police investigation of this claim resulted in the conclusion that

Mother was having visual and tactile hallucinations.5

        Mother had refused to speak to the social worker when scheduled to do so after a

visit with the minors, saying she would provide an answer to the judge and telling the

social worker to “[g]o to Hell.” Mother had attended several counseling sessions

(although once demanding a change of therapists), but this had been put on hold because

the psychiatric report reflected the opinion that Mother could not benefit from services.

The therapist deferred further meetings until Mother could be stabilized on psychotropic

medication. Mother had refused to complete required drug tests.

        Mother had been referred for a medication assessment, which took place on

February 19, 2013. According to the report from the Department of Mental Health,

Mother denied any crisis, denied paranoid or delusional thinking, denied ongoing

depression, and stated that she did not need medication. Based on these statements, it

was found she was not in need of such services. However, after the psychiatric report

was received, it was decided to re-refer Mother, but she could not be scheduled until May

2013.




        5The social worker included the actual investigative report. Although the social
worker’s report could lead to the assumption that Mother had fabricated or imagined
everything, in fact one of the firefighters returned to her home later to offer her a working
stove, and a sexual act was performed. The firefighter claimed that it was consensual,
and as Mother’s rather vague description included no assertion of actual force, the
investigation was inconclusive.


                                              5
       The psychological report itself raised serious issues. The evaluator commented

that Mother was “a very difficult interview subject.” Her responses when the evaluator

attempted to take a life history were frequently tangential or irrelevant and information

could be obtained only with persistence. Asked if she ever heard voices when no one

was around, Mother responded “My stomach does that.” Mother “completed” four

standardized tests, but three were deemed invalid due to missing data. The fourth

reflected no tendency towards child abuse although it showed that Mother had a rigid

parenting style. Even without the test results, the evaluator believed that Mother suffered

from a psychotic disorder and also demonstrated paranoia. It was his opinion that due to

being “overtly psychotic,” Mother could not then benefit from services or safely care for

the minors. He recommended treatment and psychotropic medications.

       Mother had been consistent in visiting the minors although she was often late. She

generally prepared for the visits with games, books, and drinks for the children.

However, it was noted that she was often argumentative and accusatory towards both the

minors (especially T.C.) and the supervising staff. On one occasion, Mother got up to

leave the visit early and said with respect to T.C. “‘[t]his child is becoming a nuisance

and a spoiled rotten brat. I’m not going to listen to this.’” The cause of this remark was

that the two children were tossing a ball between them rather than playing the game

chosen by Mother. Mother also discussed inappropriate subjects such as her finances

with the children, causing Tr.C. at least to become anxious about money. Mother

exhibited constant mood swings during the visits, changing from being cheerful to critical



                                             6
or complaining, and tended to focus attention on her own issues and needs rather than

those of the children. Both minors, in the social worker’s opinion, recognized Mother’s

unpredictability and tried to respond to questions in a placating manner. It was also noted

that the minors played well with each other when not with Mother, but that Mother’s

favoring of Tr.C. caused them to bicker during visits. At one visit just prior to the

hearing, Mother falsely told the children she had gotten a pool for the residence, then told

them this was untrue. At the same visit Mother appeared to have visual and aural

hallucinations.

       Mother had also behaved inconsistently when asked to provide medical releases;

she signed them and then asked that they be destroyed, and attempted to revoke the

authorizations.

       Despite these concerns, the social worker recommended that services continue,

and this was the order of the court.

       By the time the report was prepared for the 12-month hearing, more of

Mother’s medical and mental health records had become available. After being assessed

for medication, on June 24, 2013, Mother was prescribed Depakote ER and Celexa.

The clinician described her as “rambling, raising her voice at times, agitated and

unpleasant . . . displaying many signs of paranoia, unable to talk during most of the

interview.” Six weeks later Mother returned to the office complaining about having been

prescribed medication and having been “made to sign the medication consent.” She

stated that she had stopped taking Depakote. Eleven days later Mother appeared at the



                                             7
Department of Mental Health demanding her records and telling staff that she had been

“tortured” by the Department. She also informed staff that she had filed complaints and

lawsuits.

       Two weeks later (on September 3, 2013) Mother returned to the clinic and along

with various complaints asserted that she was not paranoid because all of her complaints

are true. By that time, she had also been prescribed Abilify, but her insurance did not

cover it, and staff assisted her in finding a new provider although she was reluctant to

sign a medical release.

       By the time she met with the social worker on October 3, Mother was taking three

mental health medications in addition to the 11 medications prescribed by her personal

physicians.6 She appeared less argumentative at an October 2013 meeting. The social

worker’s attempts to contact the Department of Mental Health were hindered by the

latter’s failure to respond and the fact that Mother had “pulled” her consent for the

release of her records.

       Mother failed to appear for random drug testing on several occasions over the

summer of 2013. When she told the social worker that she did not always have money

for gas, she was offered a bus pass, which she refused.

       However, by the time the 12-month report was prepared, the social worker

indicated that Mother’s behavior during visits was less problematic. Although the social


       6 She was taking several pain medications (Lidoderm, Neurontin, baclofen, and
ibuprofen) prescribed by at least two different doctors, and several allergy medications.


                                             8
worker felt that Mother’s progress had been minimal, the recommendation again was for

continued services, and again this was the order. The court also authorized unsupervised

liberal and overnight visits if Mother continued to comply with her case plan.

       The 18-month report was filed on March 18, 2014. This reflected that in

December 2013 and March 2014, the social worker, making an unannounced visit to

Mother’s home in the early morning, had found nonrelative males in the house in

Mother’s absence. Mother was attending her appointments at the Department of Mental

Health. She had also begun counseling and was reported to be making positive,

motivated efforts. However, she later rescinded her consent for disclosure, so the

Department could not obtain current information or opinions from her therapist.

       Visits continued to be more appropriate than had earlier been reported. However,

in February and March 2014 Mother had called police, once to complain about her

attorney and the second time to report a disagreement with a neighbor. Mother also

tested positive for marijuana twice.7 On February 13 she called the social worker with a

question about visits, and was noted to be “giggling, laughing, and [to have] pressured

speech.” The minors’ caregiver also reported that Mother sometimes sounded “‘loopy’”

during telephone calls.

       In recommending that the minors not be returned to Mother, the social worker

focused on her lack of regular drug testing (although Mother has never had a “drug


       7Mother apparently has a “medical marijuana” card in addition to her pain
medications.


                                            9
problem” other than her use of prescription marijuana) and her lack of candor concerning

her living companions (if any).

       At the hearing on April 24, 2014, Mother presented only stipulated evidence.

There was evidence that the minors would testify that they loved Mother and wanted to

return to her. There was also a stipulation that if Mother were to testify, she would testify

that she loved her children; that visits had been consistent and appropriate; that she had

maintained the same residence since 2004; that she had completed a parenting class; that

she had been found not to need substance abuse treatment; that she had completed the

psychological evaluation and medication assessments; that she had been medication

compliant since September 2013; and that she was in counseling. It was also stipulated

that Mother had always provided for the children and had only been “5150’d” twice.

Finally, Mother stipulated to her frustration with the proceedings and acknowledged

inappropriate interactions with the Department.

       In terminating services and refusing to return the minors to Mother’s custody, the

trial court focused on Mother’s marijuana use and her refusal to consent to the disclosure

of information by her therapist. Although it recognized that Mother was authorized to

use marijuana, it was concerned about the effects of this “self-medicati[on]” with a

mood-altering drug on her prescribed mental health medications8 and the fact that she


       8 As the trial court made its remarks, Mother indicated that she had told her
mental health care provider about the marijuana use, but the social worker’s report
indicated that the doctor told the social worker that she was not aware of this.



                                             10
appeared to be under the influence during one telephone conversation. The trial court

also drew an inference negative to Mother from her refusal to consent to her therapist’s

release of current information.

       Tellingly, after the trial court announced its decision, Mother spontaneously

complained to the court that “I did not realize I was supposed to remain at my residence

at any given time. I wasn’t in contact with my social worker in order to be an open book

to let them—and be at their beck and call at any time they were to come over. I thought I

was free to live my life, free, at will, but I don’t have any money to do anything or go

anywhere. What happens if I rent a room out in order to sustain myself?”9

                                       DISCUSSION

                                              A.

       The first issue raised by Mother is that the trial court erred in finding a substantial

risk of detriment if the minors were returned to her custody.10 The standard is a fairly

high one, and the fact that the parent is not perfect or has not made as much progress as

might have been hoped is not a valid basis for a finding of detriment. (In re Yvonne W.

(2008) 165 Cal.App.4th 1394, 1400.) However, our review of the trial court’s decision

applies the “substantial evidence” test. (In re B.S. (2012) 209 Cal.App.4th 246, 252.)



       9 This quasi-outburst may go a long ways in explaining why Mother’s counsel
chose to have her present her evidence by stipulation.

       10 Section 366.22, subdivision (a), prohibits return if there is a “substantial risk of
detriment to the safety, protection, physical or emotional well-being of the child.”


                                              11
       We agree, as did the trial court, that Mother had demonstrated over the last five or

six months good compliance with her mental health treatment and medication

requirements, and that treatment had apparently resulted in improved behavior during

visits. However, her refusal to allow her therapist to communicate with the social worker

(and thus indirectly with the court) fully justified the negative inferences drawn by the

court to the effect that either her progress, her participation, or both, had deteriorated

since the therapist’s previous communication with the social worker. Although an

inference is not itself evidence, it may be relied upon to support a verdict or other

judgment. (Ajaxo, Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 50.) Mother’s

refusal also raised serious questions concerning her willingness to continue to cooperate

if the minors were returned to her under a family maintenance plan. Mother’s use of

marijuana to the extent that it apparently affected her thought processes constitutes

further support for the trial court’s belief that Mother did not have insight into her mental

health issues or a handle on dealing with them.

       We also acknowledge that at least since the termination of the previous

dependency, Mother has adequately cared for the minors. However, in light of the

reports of past violence on Mother’s behalf and her current diagnosis as psychotic (a

diagnosis which the record, to the lay reader, fully supports), as well as her difficulties in

recognizing that she even has mental health issues, the family situation was clearly

perilous at the time these proceedings began. Although the Department bore the burden




                                              12
of proof of detriment, the original risks of harm to the minors were not shown to have

been resolved by Mother’s consistent stability. Accordingly, we uphold this finding.

                                             B.

       Mother then argues that services were not adequate because she was not given

unsupervised and extended visitation with the minors. It is well established that the 18-

month limitation on services may, or must, be disregarded if the parent has not received

adequate services. (See Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.)

       To a large extent we view this argument as a red herring because the trial court’s

decision not to return the minors to Mother’s custody was not based on any issues with

her visitation or questions as to the minors’ bond with her. A few overnight visits over

the last few months of the dependency would not necessarily have affected the trial

court’s views, even if they had gone well.

       But on the merits, we cannot say that the Department’s failure to authorize such

visits constituted inadequate services. Such visits were conditioned upon her compliance

with drug testing, and she did not comply, both missing tests and testing positive for

marijuana. The concerns we noted above concerning Mother’s use of various substances

apply equally to the prospect of allowing unsupervised visits in Mother’s home.11 The

Department was not required to allow such visits.




       11 We do note that Mother has not been found to have issues with the abuse of
unprescribed substances. However, her polysubstance reliance, including the use of
known addictive narcotics plus marijuana, remains cause for concern.


                                             13
                               DISPOSITION

     The petition is denied.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               HOLLENHORST
                                                             J.
We concur:



RAMIREZ
                      P. J.



RICHLI
                         J.




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