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In Re K. S. et al., Persons Coming Under the Juvenile Court v. J. S

February 14, 2012

IN RE K. S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
J. S., DEFENDANT AND APPELLANT.



(Super. Ct. Nos. JV10188, JV10189)

The opinion of the court was delivered by: Robie , Acting P. J.

In re K.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

J. S. (mother) appeals from dispositional and status review orders by the juvenile court as to her minor daughters N. K. and K. S. (Welf. & Inst. Code,*fn1 § 395.) Mother contends that the court erred at the dispositional stage by admitting a psychological evaluation of mother which lacked proper foundation and by adopting case plans for mother and K. S. which were inadequately tailored to their needs. Mother also contends that the court erred later by unlawfully changing or modifying dispositional orders on conjoint counseling and visitation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2010, mother lived with the minors, N. K. (age 15) and K. S. (age 14), in Davis.

N. K.'s father and mother's ex-husband, B. K., lived in Seattle. Mother had primary physical custody of N. K., pursuant to a Washington family court order, but N. K. had visited father regularly.

K. S. was adopted by mother in 2001 after K. S.'s biological mother (mother's sister, now deceased) lost custody of her children in her native North Carolina. K. S.'s maternal aunt, L. M., also a resident of North Carolina, has become involved in these proceedings, over mother's opposition.

The Section 300 Petitions And Detention Report

On April 29, 2010, Yolo County Department of Employment and Human Services (the department) filed a section 300 petition as to K. S. alleging: (1) mother might physically and emotionally harm the minor by covering her mouth and nose as "discipline," and (2) mother could face criminal charges.*fn2

The detention report alleged: Mother had pinned N. K. down and smothered her over 10 times, and had done the same to K. S. around 50 times. Mother also used to lock K. S. in the garage. After N. K. reported the most recent incident to persons at her school, mother was detained under Penal Code section 273a.

Mother admitted regularly restraining the minors, but denied smothering them or being the aggressor. Mother claimed that N. K. was sassy and got physical with her, while K. S. had frequently run away from home.

Mother and the minors had been in family therapy together for two years. Mother claimed she had attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD) and took medication both for that condition and for depression.*fn3 N. K. wanted to be placed with her father in Seattle. K. S. wanted to be placed with the maternal aunt in North Carolina.

The Initial Hearing And Subsequent Events

On April 30, 2010, the juvenile court ordered N. K. placed temporarily with father and directed him to seek a change of custody order in the family court. However, the family court declined to issue the order.

When the social worker and the police executed a new protective custody warrant for N. K., mother resisted and tried to tape-record the proceedings secretly. The maternal aunt informed the social worker that mother was "very controlling" and had "anger issues."

At a contested detention hearing on May 4, 2010, the juvenile court adopted the recommended findings and orders as to K. S. (omitting N. K. because she had not yet been redetained).*fn4

Jurisdiction Reports

The jurisdiction reports recommended out-of-home placement for both minors pending the disposition hearing.

There were referrals to Child Protective Services (CPS) on the minors in 2008 and 2009. The maternal aunt, who lived with mother and the minors from July to October 2009, saw abusive conduct by mother at that time.

Mother denied anger issues and invited a full investigation. She said that in the recent incident N. K. physically attacked her, then panicked when mother restrained her and tried to calm her. Mother claimed the minors had made up the present charge so they could live with father in Washington, and did not want to visit her now because they could not face her after lying about her. (According to mother, although K. S. had no ties to father and his family, she had recently contacted them on Facebook.)

Debra Wiegel, a family therapist who had treated mother and the minors, also believed N. K. had made up her accusations because she wanted to live with father. Wiegel had never seen evidence that the minors feared mother. The minors' school counselor believed the minors' story.

The minors said they had not told Wiegel about mother's abuse because they expected they would be disbelieved and would get into more trouble with mother afterward. According to the minors, mother was controlling and abusive; among other things, she tape-recorded all their conversations.

N. K. would prefer to live with father. Both minors would prefer foster care to living with mother.

Mental Health Assessment Of K. S.

A mental health assessment of K. S. by psychologist Marta Pickens, Ph.D., filed June 2, 2010, stated that due to early childhood traumas (including sexual abuse before the age of three) and feelings of abandonment and loss as to her biological parents, K. S. exhibited "significant emotional stress," "deficits in her coping capacities and level of frustration tolerance," a "hypervigilant stance toward others and the world," and an "insecure-avoidant attachment style." Mother claimed K. S. had had behavioral problems ever since her adoption.

K. S.'s emotional health seemed to have improved recently. However, K. S. saw mother as controlling and manipulative and believed that until lately mother had favored N. K. at K. S.'s expense.

Dr. Pickens thought mother needed a psychological evaluation and K. S. needed formal individual therapy.

Jurisdictional Hearing

At the contested jurisdictional hearing on June 7, 2010, the juvenile court made the recommended findings and orders as modified, ordered counseling for the minors without the parents' involvement, and ordered a psychological evaluation for mother.

Disposition Report -- N. K.

The disposition report as to N. K., filed July 1, 2010, recommended that father, the nonoffending, non-custodial parent, receive physical custody, with shared legal custody, reunification services for mother, and mediation to work out visitation issues.

Father was willing to bring N. K. to California for monthly visits and to find a therapist for her. She had begun counseling.

Mother alleged that N. K. had been assessed with ADD, but no one else thought so. In fact, it was K. S. who had been so assessed.

N. K. did not want to return to mother's care or visit her. After the family court hearing, she felt unsafe in the home. N. K. feared mother's anger and "'mind games.'" Mother created a crisis every two weeks. Half of their arguments became physical. N. K. had felt hopeless about reporting her situation to the therapist, who was on mother's side.

Mother said that after she took some makeup away from N. K. as a disciplinary measure, N. K. became physically aggressive, so mother put her on the ground and restrained her. Mother admitted that this restraint, during which N. K. claimed she could not breathe, lasted 20 to 30 seconds.

Mother admitted that she had similarly restrained K. S. approximately 50 times. K. S. said mother had lately been doing it to N. K. instead because N. K. talked back to her.

Mother denied a "mental health diagnosis," but "believe[d]" she had ADD, for which she took Adderall; she also took Celexa. She had been seeing individual therapist Valerie Frakel for two years. She had been referred to parenting and anger management classes, though she denied anger issues.

After the social worker said she could not review the police department's DVD and mother's tape of her police interview, as mother had requested, because they were police property, mother indicated that due to "concerns about the Department" she would prefer to communicate with the social worker by e-mail from now on.

Over a month later, the social worker and mother had a "tense," "adversarial" meeting. Mother said: "If anyone expects me to say I abused my kids that is not going to happen." She insisted she wanted her daughters back and appeared very committed to them.

The minors' school counselor, Joanna Littell, had worked with mother and the minors for at least two years. Mother had been a strong advocate for the minors and was invested in their education. However, Littell had ongoing concerns about the family because the minors had reported mother's physical abuse to her and another school counselor, but the minors felt they were not believed and the situation was hopeless.

A teacher at the minors' school said the minors did not report abuse to him. Unlike mother, he had no concerns about ADHD as to N. K., but did have such concerns as to K. S.

Disposition Reports -- K. S.

The disposition report on K. S., also filed July 1, 2010, recommended out-of-home placement with reunification services for mother. K. S., like N. K., did not feel she would be safe in mother's care and did not want to visit her. K. S. had falsely denied abuse to CPS a year ago because she felt guilty about getting mother in trouble, but she would not lie about conditions at home anymore.

K. S. had had three mental health evaluations since 2001. In 2004, she was assessed as having ADD, but mother claimed medication did not help and the diagnosis was incorrect.

The maternal aunt had requested placement and K. S. liked the idea, but it was not feasible because the maternal aunt lived in North Carolina and mother would be receiving reunification services. N. K.'s father had also asked to be considered for placement of K. S., but was advised he did not qualify.

K. S., who was in the same foster home as N. K., hoped that N. K. would be placed with father so that K. S. could be the only foster child in the home. K. S. felt N. K. had previously betrayed her by telling on her to get her in trouble.

K. S. did not try to intervene in the most recent incident of abuse because she did not think it would make a difference and she wanted to stay out of the way. She had learned how to avoid conflicts with mother by doing what she was supposed to do.

K. S. reported fear of going home and being tape-recorded as N. K. was. According to her, mother would not let things drop; instead, she would become more frustrated and verbally abusive.

Dr. Pickens, who found K. S.'s disclosures about physical abuse credible, did not think K. S. should be returned to mother at this time.

Mother's Response

On July 7, 2010, mother filed a voluminous response to the disposition reports, asking the juvenile court to return the minors to her custody under long-term supervision, to order all persons involved (including father) to participate in counseling, and to order N. K. to be tested for ADHD. The core of mother's response was a statement of over 34 single-spaced pages, setting out the history of her conflicts with father and his alleged attempts to poison N. K.'s mind against mother, among other things.*fn5

Dispositional Hearing (July 16, 2010)

On this date, the juvenile court (Judge Basha) held the first dispositional hearing. The court observed at the start that the parents' past conflicts were not relevant and tape-recording a person without permission is a crime in California.

After hearing the social worker's testimony, the court continued the matter to obtain the pending psychological evaluation of mother, a bonding assessment, and a mental health assessment of father.

The Psychological Evaluation Of Mother

In July 2010, Janice Nakagawa, Ph.D., submitted her evaluation. Based on a clinical interview of mother, psychological testing, and record review (including notes from Debra Wiegel and Valerie Frakel, the disposition reports, and Dr. Pickens's evaluation of K. S.), Dr. Nakagawa was of the opinion that mother suffered from "Anxiety Disorder, NOS [not otherwise specified], secondary to family issues," "Parent-Child Relational Problems," and "Personality Disorder, NOS."

According to the report, mother accused N. K. of making a "power play" just when K. S., whom mother called "attachment disordered," was getting better. Mother said she tape-recorded her conversations to protect herself against inaccurate ...


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