1 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 CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

L.C., Petitioner,

v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest. E061091 (Super.Ct.No. SWJ003525) OPINION

ORIGINAL PROCEEDINGS; petition fo r extraordinary writ. John M. Monterosso, Judge. Petition denied. Marla C. Mahoney for Petitioner. No appearance for Respondent.2 Pamela J. Walls, County Counsel, and Ju lie Koons Jarvi, De puty 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 impl ementation hearing (Welf. & Inst. Code, § 366.26) 1 with respect to her child ren, minors T.C. and Tr.C. 2 She argues that the trial court erroneously found that re turning 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. (t he minors), were bor n in 2004 and 2006, respectively. The Department of Public So cial Services (Departm ent) filed the initial petition on September 26, 2012, a nd in essence alleged that th e minors had no one to care for them because Mother had been hospita lized under a section 5150 mental health evaluation hold. Although the children app eared well cared for and ex pressed no concerns about Mother, Mother had been taken into medica l 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 na mes of both children begin with the letter “T.”

3 The minors are placed with a relative wh o apparently remains confidential, and the expectation is that a legal guardianship wi ll be established. The trial court ordered continued visitation.3 on her cell phone. She then drove her vehicl e 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 th rough 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 ra mbling, incoherent comments apparently relating the person in the photos to the childre n’s father, who had not been in their lives since before Tr.C. was born. When contacted, the father reported th at Mother had “‘major mental health concerns’” and could be violen t 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 co mmitted the violent acts. Mother called the social worker again the next day, speaking erratically and jumping from topic to topic and blaming poli ce for her apprehension. She said she had “told him [the officer] it was Brandon Johnson [t he minors’ father], th is guy is capable of hurting anyone and he does not ca re. This is the type of pe rson that can get into your house without keys . . . !” She admitted usi ng multiple medications for pain and that “I don’t get wasted but I get off balance” befo re moving on to claim that “people on the baseball league called in a false report sayi ng that I was hitting on their husbands. I called an attorney and said ‘This is harassment.’”4 When the social worker, in response to Mother’s question about getting her children back, advised her to get a ment al 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 ha ve any money because I only get Cash Aid and
now I won’t . . . .” Mother’s prior history with child pr otective services included substantiated allegations of emotional abuse and general ne glect in 2003 and 2004, including threats to drive off a cliff with T.C., wh ich Mother made at a family law court hearing. T.C. was made a dependent child at that time and in 20 06 Mother regained fu ll custody. Mother has three older children who li ve with their father. After finding the minors to fall within s ection 300, subdivision (b), Mother was ordered to undergo a psycho logical and psychiatric asse ssment, to participate in counseling, to complete a parenting class, a nd 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, di d 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, 2013.5 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 provi de an answer to the judge and telling the social worker to “[g]o to Hell.” Moth er had attended several counseling sessions (although once demanding a change of therapis ts), but this had been put on hold because the psychiatric report reflected the opinion th at 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 medi cation assessment, which took place on February 19, 2013. According to the repor t from the Department of Mental Health, Mother denied any crisis, denied paranoi d or delusional thin king, 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 Moth er, but she could not be scheduled until May
2013.

5 The 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 retu rned to her home later to offer her a working stove, and a sexual act was performed. The fi refighter claimed that it was consensual, and as Mother’s rather vague description in cluded no assertion of actual force, the investigation was inconclusive.6 The psychological report itself raised serious issues. The evaluator commented that Mother was “a very difficult interview su bject.” Her responses when the evaluator attempted to take a life history were frequent ly 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 a lthough it showed that Mother had a rigid parenting style. Even without the test resu lts, 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 th en benefit from services or safely care for the minors. He recommended treatme nt and psychotropic medications. Mother had been consistent in visiting the minors although she was often late. She generally prepared for the vi sits with games, books, a nd drinks for the children. However, it was noted that she was often argu mentative 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 liste n to this.’” The cause of this remark was that the two children were tossing a ball betw een them rather than playing the game chosen by Mother. Mo ther 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 fro m being cheerful to critical7 or complaining, and tended to focus attentio n 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 questi ons in a placating manner. It was also noted that the minors played well with each other when not with Mothe r, but that Mother’s favoring of Tr.C. caused them to bicker durin g visits. At one visit just prior to the hearing, Mother falsely told th e 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, th e 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 h ealth records had beco me 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 para noia, unable to talk during most of the interview.” Six weeks later Mo ther returned to th e office complaining about having been prescribed medication and ha ving been “made to sign the medication consent.” She stated that she had stopped ta king Depakote. Eleven days la ter Mother appeared at the8 Department of Mental Health demanding her records and telli ng staff that she had been “tortured” by the Department. She also inform ed staff that she had filed complaints and lawsuits. Two weeks later (on September 3, 2013) Mo ther returned to the clinic and along with various complaints assert ed 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 th e social worker on October 3, Mother was taking three mental health medications in addition to th e 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 wo rker 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 repo rt was prepared, the social worker indicated that Mother’s behavior during vis its was less problematic. Although the social

6 She was taking several pain medicati ons (Lidoderm, Neurontin, baclofen, and ibuprofen) prescribed by at l east two different doctors, and se veral allergy medications.9 worker felt that Mother’s progress had been minimal, the recommendation again was for continued services, and again this was the orde r. The court also authorized unsupervised liberal and overnight visits if Mother cont inued 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 male s in the house in Mother’s absence. Mother wa s 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 cons ent for disclosure, so the Department could not obtain current inform ation 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 calle d the social worker with a question about visits, a nd was noted to be “giggling, la ughing, and [to have] pressured speech.” The minors’ caregiver also reporte d that Mother sometim es sounded “‘loopy’” during telephone calls. In recommending that the minors not be re turned to Mother, the social worker focused on her lack of regular drug testing (although Mother has never had a “drug

7 Mother apparently has a “medical marijuana” card in addition to her pain medications.10 problem” other than her use of prescription ma rijuana) and her lack of candor concerning her living companions (if any). At the hearing on April 24, 2014, Mother presented on ly stipulated evidence. There was evidence that the minors would testif y 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 be en consistent and appr opriate; that she had maintained the same residence since 2004; that she had comple ted a parenting class; that she had been found not to ne ed substance abuse treatment; that she had completed the psychological evaluation and medication asse ssments; that she had been medication compliant since September 2013; and that she wa s 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 frustra tion with the proceedings and acknowledged inappropriate interactions with the Department. In terminating services and refusing to return the minors to Mo ther’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 recogn ized that Mother was authorized to use marijuana, it was concerne d about the effects of this “self-medicati[on]” with a mood-altering drug on her prescrib ed mental health medications 8 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 th e social worker that she was not aware of this.11 appeared to be under the influence during on e telephone conversation. The trial court also drew an inference negativ e to Mother from her refusal to consent to her therapist’s release of current information. Tellingly, after the trial court announc ed its decision, Mother spontaneously complained to the court that “I did not reali ze I was supposed to remain at my residence at any given time. I wasn’t in contact with my social worker in orde r 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 Mo ther 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, 14 00.) However, our review of the trial court’s decision applies the “substantia l evidence” test. ( In re B.S. (2012) 209 Cal.App. 4th 246, 252.)

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

10 Section 366.22, subdivision (a), prohibits re turn if there is a “substantial risk of detriment to the safety, protection, physical or emotional well-being of the child.”12 We agree, as did the trial court, that Mo ther had demonstrated over the last five or six months good compliance with her me ntal health treatment and medication requirements, and that treatment had apparent ly resulted in improved behavior during visits. However, her refusal to allow her therapist to communi cate 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 previo us communication with the so cial worker. Although an inference is not itself evidence, it may be re lied upon to suppor t a verdict or other judgment. ( Ajaxo, Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4t h 21, 50.) Mother’s refusal also raised serious questions concer ning her willingness to c ontinue to cooperate if the minors were returned to her under a family maintena nce plan. Mother’s use of marijuana to the extent that it apparently affected her thought processes constitutes further support for the trial cour t’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 si nce 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 ha s mental health issues, the family situation was clearly perilous at the time these proceedings bega n. Although the Department bore the burden13 of proof of detriment, the original risks of harm to the minors were not shown to have been resolved by Mother’s c onsistent 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 mi nors. 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.4t h 1377, 1388.) To a large extent we view this argument as a red herring because the trial court’s decision not to return the mi nors 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 th e Department’s failure to authorize such visits constituted inadequate se rvices. Such visits were conditioned upon her compliance with drug testing, and she did not comply, both missing te sts and testing positive for marijuana. The concerns we noted above concerning Mother’s use of various substances apply equally to the prospect of allowi ng 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 fo und to have issues with the abuse of unprescribed substances. However, her pol ysubstance reliance, including the use of known addictive narcotics plus mariju ana, remains cause for concern.14 DISPOSITION The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST J. We concur:

RAMIREZ P. J.

RICHLI J.