In re K.S.
THE COURT:
It is ordered that the opinion filed herein on January 27, 2016, be modified in the following particulars:
- On page 1, line 1, change “Andrea S.” to “Mother A.S.”
- On page 1, line 9, change “Andrea S.” to “A.S.”
- On page 2, line 1, change “Andrea S. (mother)” to “A.S. (hereafter mother)”
- On page 2, line 2, delete “Kaiser Permanente”
- On page 2, lines 2 - 3, change “Kaiser medical facility” to “covered medical facility”
On page 2, line 3, change “Kaiser pediatric psychiatric clinic” to “covered pediatric psychiatric clinic” - On page 2, line 5, delete “with Kaiser”
- On page 2, lines 11 - 12, delete “for Santa Clara County”
- On page 4, lines 11 - 12, delete “, who worked for the Department of Corrections and Rehabilitation,”
There is no change in the judgment.
The petition for rehearing is denied.
Rushing, P.J.
Marquez, J.
Grover, J.
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re K.S., a Person Coming Under the Juvenile Court Law.
H042339 (San Benito County Super. Ct. No. JV-14-00024)
SAN BENITO HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.S., Defendant and Appellant.
Andrea S. challenges the juvenile court‘s assumption of jurisdiction over her daughter, K.S., under
I. BACKGROUND
K.S. was removed from an abusive home when she was four. At age five she was placed with Andrea S. who adopted her a year later. K.S. is a special needs child diagnosed with reactive attachment disorder, attention deficit hyperactivity disorder, post traumatic stress disorder, and a learning disorder. Those special needs qualified K.S. for financial assistance through the state‘s Adoption Assistance Program.
When K.S. was nine an Adoption Assistance Program assessment identified problem behaviors such as chronic lying and stealing, aggression, problems with peers, property destruction, enuresis, and sexualized behavior. In seventh grade K.S. brought a knife to school that she claimed to be carrying for protection. K.S. started ninth grade in 2014. In September of that year she was assaulted by an 11-year-old girl, a runaway companion, resulting in a fractured nose. By December of that year she had run away several times. According to mother, K.S. was having difficulty adjusting to high school. A school mate was pressuring her to have sex with him, and she was carrying knives for protection. K.S. had also been a suspect in a burglary and theft case.
K.S. ran away Saturday, December 6, 2014, spent the night with a boy in an abandoned house, and returned home the next day with three large knives. On Monday, December 8, school staff contacted mother after finding а note K.S. had written to a friend saying “When you get this I will be dead!” K.S.‘s Behavioral Health therapist was
K.S. was in foster care for two months, living in a home in Los Banos with several teenage boys. After the January 2015 jurisdiction hearing, she was placed with her biological aunt in Sacramento.
II. TRIAL COURT PROCEEDINGS
On December 11, 2014, the Agency filed an amended juvenile dependency petition alleging that K.S. came within the jurisdiction of the juvenile court under
On January 5 mother requested that the petition be dismissed because she planned to move with K.S. to Sacramento where K.S. would have extended family support and
A. THE JURISDICTION HEARING
At a contested jurisdiction hearing held on January 26, mother again asked that the petition be dismissed because she wаs capable of parenting K.S. with an appropriate safety plan. She testified that she had arranged for K.S. to live with her aunt in Sacramento where appropriate mental health services were available. Mother, who worked for the Department of Corrections and Rehabilitation, would relocate to Sacramento as soon as she could obtain a job transfer. In the meantime, she planned to visit and participate in treatment with K.S. every weekend. Mother had obtained referrals to Sacramento mental health services specializing in reactive attachment disorder. K.S.‘s aunt had a long-term and supportive relationship with mother, and mother and K.S. wеre both close with her. Mother intended to give the aunt K.S.‘s Adoption Assistance Program grant money and authorize the aunt to obtain needed services. Mother testified that K.S. was not doing well in her current placement—sharing a foster home with five teenage boys. On December 10 mother had provided the Agency with contact information for the biological aunt, but K.S. had remained in the Los Banos placement hoarding knives, being harassed by the boys, and not receiving individual or family therapy.
K.S.‘s aunt, who lived with her husband and adult son, testified that her home was open to K.S., and she would work with mother to facilitate K.S.‘s treatment and therapy. Although the aunt understood that mother‘s plan was to quickly reunite with K.S., if that did not happen the aunt was willing to put K.S. on her insurance plan and, with or
K.S.‘s attorney made an offer of proof that K.S. “would like to go to Sacramento and be with her aunt.” K.S. corrected her attorney, explaining “I wouldn‘t like to live with my aunt. I would like to be released to my mother because I feel that I trust her more. And we‘re working on our problems, and it‘s better if we‘re together and we work on our problems together instead of being apart. It‘s a lot harder for me.”
The court interrupted the Agency‘s summation, asking “Isn‘t this a lot like the dirty house that‘s been cleaned up by the time we get to hearing? [¶] ... [¶] She‘s not refusing to take her; she wants her back. [¶] ... [¶] And she has a plan.” The Agency argued that “the issues [were] still there,” K.S.‘s extended contact with her aunt was not recent, and mother‘s plan was not realistic. At the same time, the Agency argued that if the court were to take jurisdiction, it was considering the same aunt for placement. Jurisdiction would provide the Agency the opportunity to make sure the aunt had appropriate services to maintain the placement, and it would provide a safety net for K.S. in the event aunt could not care for her.
During mother‘s closing summation the court voiced a concern that K.S. now wanted to be with mother but mother wanted to send her to a place with no recent familiarity. Mother‘s counsel suggested mother explain her timetable, and a colloquy ensued,3 in which mother was repeatedly asked to stop talking over the court and warned
The court found insufficient evidence to sustain the subdivision (g) allegation. Regarding the subdivision (c) allegations, the court ruled: “I was leaning toward, frankly, that there wasn‘t any evidence for [(c)], because it appeared that [mother] was willing to take the child basically after she had refused to take the child home previously. And I‘m looking to see – the child is suffering or is at substantial risk of suffering serious emotional damage, and I think we‘ve got that. But it has to be because the child has no parent or guardian capable of providing the appropriate care. On the one hand, it sounds
A contested disposition hearing was held on March 16, 2015, at which time mother sought dismissal of the petition. The Agency‘s disposition report described mother during the course of the dependency as having “regularly blamed everyone else for the problems that exist between herself and her daughter.” The report continued: “When someone of authority, whether it is at San Benito County Behavioral Health, the Agency, and even the Court, poses [a] question regarding the mother‘s action or inaction, they have frequently been met with a loud, aggressive, hostile response. [¶]...[¶] The mother‘s mental health and issues with controlling her own anger are of concern to the Agency and should be addressed during the course of this dependency. [¶] While the initial concerns focused on [K.S.‘s] behaviors, the Agency strongly believes the mother has a part to play in why [K.S.] acts in the manner she does and this has not yet been addressed. Therefore, the Agency does not believe the mother has made substantive progress toward mitigating the issues which led to the Court‘s initial intervention.”
The social worker testified on cross-examination that mother had arranged for individual counseling for herself through Kaiser and she had located reactive attachment disorder counseling for K.S. in Sacramento. The Agency was not opposed to the services mother had identified for K.S., and K.S. had started therapy. The social worker acknowledged that K.S. had displayed signs of mental anguish in Los Banos, and she had received no therapy until she resumed sessions at Behavioral Health in February. The social worker explained that the Agency had had an issue with mother wanting to discuss with K.S. what was going on in court during visitations. Initially mother was upset when she was instructed not to discuss court with K.S., but eventually she followed the Agency‘s direction, making substantial progress in that regard.
An Agency supervisor testified that his staff met with Behavioral Health staff immediately after K.S. was placed in Los Banos, and Behavioral Health submitted a treatment authorization request to Merced County at that time. The Agency transported
The Agency supervisor felt that court supervision was appropriate to ensure K.S. had access to appropriate care given the circumstances of K.S.‘s detention and mother‘s acknowledged inability to keep K.S. safe in Hollister. He was unfamiliar with the сourt dismissing a petition and ordering the Agency to provide informal supervision services, but he believed the Agency could comply with such an order.
A licensed social worker who was mother‘s colleague testified on mother‘s behalf as an expert in child welfare. She testified that the label “foster child” can be stigmatic and potentially harmful. According to the expert, mother had completed a 10-hour trust based parenting course for children from difficult beginnings, was engaged in individual therapy, and was starting group therapy. Mother had arranged for psychiatric services for K.S. both in San Benito and Sacramento counties, and mother and K.S. had completed intakes for reactive attachment disorder therapy in Sacramento. In the expert‘s opinion, K.S.‘s best interest would be served by dismissal—even without informal supervision—because K.S. was going to remain in a near-kin placement with her aunt, and the aunt and mother had arranged for appropriate services for K.S. She also believed the family could manage K.S.‘s care more competently than the Agency, and K.S. did not need to be a dependent child for a second time in her life. Even though she did not know K.S. well and she had never spoken with any mental health professionals in this case, the expert
The disposition report contained a February 18 e-mail from the aunt voicing K.S.‘s request to continue living with her until mother moved to Sacramento. K.S. asked to start family therapy and discuss her return to mother‘s care after mother settled in Sacramento. K.S.‘s counsel opposed a dismissal, arguing that K.S.‘s at-risk behavior, mother‘s inability to control her, and mother‘s unrealistic expectations of Behavioral Health warranted continued court supervision.
The court rejected mother‘s dismissal request, explaining that mother, by refusing to take K.S. home from Behavioral Health on December 8, had used K.S. as a pawn knowing that K.S. would be traumatized by protective custody. The court viewed mother‘s objection to court supervision as stubbornness and a failure to put K.S.‘s interests before hers. Adopting the findings and orders contained in the disposition report, the court declared K.S. a dependent, continued K.S.‘s placement with her aunt, and continued family reunification services.
III. DISCUSSION
A. JURISDICTION CHALLENGES
1. Standard of Review
Statutory bases for jurisdiction are reviewed for substantial evidence. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) We must determine whether “there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value” to support jurisdiction under subdivision (c). (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) The trial court‘s judgment is presumed correct. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) All conflicts are resolved in
The Agency has the burden of establishing that the basis for jurisdiction exists at the time of the adjudication hearing. (In re Chantal S. (1996) 13 Cal.4th 196, 210; In re Rocco M., supra, 1 Cal.App.4th at p. 820.) “In evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent‘s current understanding of and attitude toward the past conduct that endangered a child.” (In re J.N. (2010) 181 Cal.App.4th 1010, 1025–1026.)
2. Substantial evidence
Mother argues that the court‘s jurisdiction finding was not supported by substantial evidence. Subdivision (c) requires a showing that K.S. “is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others” and that either the parent is causing the emotional damage or the parent is not capable of providing appropriate mental health treatment. (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.) Here the petition alleged that mother is not capable of providing appropriate care.4
Here the record shows more than an isolated incident of mother impeding K.S.‘s mental health treatment. Indeed mother never secured specialized therapy for K.S.‘s reactive attachment disorder, even though she was aware of reactive attachment disorder treatment options in Monterey and Santa Clara counties and had been receiving a sizable monthly grant for K.S.‘s special needs since at least 2009.
Mother‘s relationship with Behavioral Health—mental health professionals who had been overseeing K.S.‘s treatment for several years—was impeding K.S.‘s therapy. According to the jurisdiction report, mother felt Behavioral Heath was disempowering her by aligning with K.S. Mother wanted Behavioral Health to set boundaries for and admonish K.S.‘s unacceptable behavior and illegal high risk activities, even though Behavioral Health‘s clinical supervisor had informed mother that it was her responsibility and not the role of a mental health clinician to tell a child what is okay and not okay and provide consequences for bad behavior. K.S.‘s individual therapist felt mother was frustrating her treatment by using therapy as a consequence for bad behavior. Mother had not been internalizing feedback regarding the role of a therapist in disciplining and setting boundaries for K.S., and she and K.S. had not been engaged in family therapy for several months.
Mother had rejected Behavioral Health‘s professional assessment that K.S. did not qualify for an involuntary psychiatric hold, knowing that refusal to take K.S. home would result in the Agency taking custody of K.S. Even after a three day cooling off period, at
Mother‘s demeanor during the jurisdiction hearing demonstrated lack of insight that her behavior was obstructing K.S.‘s ability to receive appropriate care. While we do not discount mother‘s love and desire to find appropriate mental health care for K.S., on this record substantial evidence supports the conclusion that mother was not capable of providing that care. Mother argues that this case is similar to In re Brison C. (2000) 81 Cal.App.4th 1373, but that case addressed the sufficiency of evidence to support a finding that the child suffered or was at substantial risk of suffering serious emotional damage under subdivision (c). Mother does not contest that finding here.
3. Due Process
Mother argues that her due process rights were violated because the court relied on a basis never alleged in the petition—her mental health—to sustain subdivision (c) jurisdiction. The court expressed a concern for mother‘s mеntal health based on her in-court demeanor. That demeanor is relevant to mother‘s insight into her past conduct (In re J.N., supra, 181 Cal.App.4th at pp. 1025–1026) and its effects on K.S.‘s access to appropriate mental health services. As we have explained, mother‘s decisions regarding K.S.‘s mental health care and mother‘s disregard for Behavioral Health‘s guidance and assessments support jurisdiction here. The court‘s added observations about mother‘s demeanor and mental health merely support that finding; we do not interpret the juvenile court‘s comments as asserting an additional basis for jurisdiction.
B. DISPOSITION CHALLENGES
1. Denial of Section 390 Dismissal Request
Mother argues that substantial evidence does not support the denial of her request to dismiss the petition at the disposition hearing under
a. Standard of review
As a threshold matter, we conclude that abuse of discretion, not substantial evidence, is the proper standard of review of the denial of a request to dismiss a dependency petition.
Although the substantial evidence standard may apply to an order granting a request to dismiss a dependency petition (see In re Marcus G., supra, 73 Cal.App.4th at p. 1014), that standard is not appropriate to review the denial of a dismissal request. As this court has aptly explained, “where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue аs whether substantial evidence supports the judgment.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
b. Analysis
The juvenile court did not abuse its discretion by denying mother‘s dismissal request. The court had an interest in seeing that K.S. receive and engage in appropriate mental health treatment and that mother develop skills to support K.S.‘s mental health
2. Disposition Findings and Order
a. Removal under section 361, subdivision (c)(3)
Mother argues the Agency failed to make reasonable efforts to avoid K.S.‘s removal. Mother points to what she describes as “the [A]gency‘s ineptitude” in providing services for K.S. during her initial detention—K.S.‘s placement in foster care together with several teenage boys where her at-risk behaviors continued and she received no therapy. But a questionable foster placement and a gap in therapy does not undercut the “no reasonable means” finding. Mother has failed to show how the circumstances of the initial detention and placement—however flawed—impacted the existence of any reasonable means of protecting K.S. without removing her from mother‘s care after she had been declared a dependent. Mother also points to her own role in locating appropriate mental health service providers for K.S. in Sacramento. But mother‘s identification of service providers does not amount to a reasonable means of protecting K.S. on this record, nor does it obviate the need to remove K.S. from the physical custody of her mother to protect her emotional health, as we have already discussed.
We reject mother‘s argument that the trial court understood “reasonable means” in
b. Removal under section 361, subdivision (c)(1)
The juvenile court found removal warranted under
The jurisdiction order is affirmed. The disposition order is modified to strike finding 11; as modified, that order is affirmed.
Grover, J.
WE CONCUR:
Rushing, P.J.
Marquez, J.
Trial Judge: Hon. Steven Sanders
Counsel for Plaintiff/Respondent: San Benito County Health and Human Services Agency Irma Vаlencia, Deputy County Counsel Office of the County Counsel County of San Benito
Counsel for Minor: K.S. No appearance for Minor
Counsel for Defendant/Appellant: A.S. Karen Joan Elcaness in association with Sixth District Appellate Program