v. Superior Court
Filed 7/29/13 Christina M.
v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
CHRISTINA M.,
Petitioner,
v.
THE SUPERIOR
COURT OF MERCED
COUNTY,
Respondent;
MERCED COUNTY HUMAN SERVICES
AGENCY,
Real Party in Interest.
F067292
(Super.
Ct. No. JP000700)
THE COURT
name="_ftnref1" title="">*
ORIGINAL PROCEEDINGS; petition for
Christina M., in pro. per., for
Petitioner.
No appearance for Respondent.
James N.
Fincher, County Counsel, and Sheri L. Damon, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
Christina M., in propia persona, seeks an
extraordinary writ (Cal. Rules of Court, rule 8.452 (rule)) from the juvenile
court’s order bypassing reunification
services pursuant to Welfare and Institutions Code section 361.5,
subdivision (b)(2), (10) and (11),
setting a section 366.26 hearing as to her six-year-old daughter, Amy M.;
four-year-old daughter, C.M.; and two-year-old son, Aaron M. (collectively
children). Christina contends the
juvenile court did not allow her to present facts that would have proven she
was capable of caring for her children along with proof of her efforts to do
so. We conclude the juvenile court’s
order denying reunification services is supported by substantial evidence and
we deny the petition.
name="_ftnref3" title="">[2]
PROCEDURAL AND FACTUAL SUMMARY
On
November 5, 2012, the
(agency) received a referral from a school alleging Amy M. had disclosed that
she had been sexually abused by L.P., her stepfather (stepfather). Amy M. reportedly stated that stepfather had
hurt her and she pointed to her vaginal area.
She also stated stepfather had bitten her on the cheek. The referral also alleged that during the
past 10 days, Amy M.’s behavior had changed and she had urinated on herself on
multiple occasions.
On November
9, 2012, the agency filed a petition alleging the children came within the
provisions of section 300, subdivisions (b) (failure to protect), (d) (sexual
abuse) and (g) (no provision for support).
At a jurisdiction hearing on December 20, 2012, the children’s
father, L.W., appeared and was appointed counsel.
On January 9, 2013, the juvenile court took jurisdiction of
the children without objection, elevated L.W.’s status from alleged father to
presumed father, and ordered two psychological evaluations of Christina and
L.W.
Christina was subsequently
evaluated by Dr. Gary Cavanaugh, M.D.
Dr. Cavanaugh concluded Christina had learning disabilities, borderline
intellectual functioning, suffered from attention deficit hyperactivity
disorder, and was severely impacted by an abusive and dysfunctional
childhood. According to Dr. Cavanaugh,
these conditions impacted her ability to parent in the areas of setting
boundaries, making appropriate judgments, comprehending complex or even simple
behavioral interactions, and taking independent action to care for her
children. Thus, Dr. Cavanaugh concluded
Christina was not capable of learning from reunification services to the point
where she could adequately care for her children.
On February
11, 2013, Christina was evaluated by Dr. Michael B. Jones, PH.D. Dr. Jones noted that Christina had a history
of mild mental retardation for which she started receiving supplemental
security income disability benefits when she was 18 years old. Dr. Jones measured Christina’s I.Q. at 71,
which placed her on the lower borderline range of general intellectual functioning,
i.e., at about the level of an 11 year old.
However, Christina’s educational, occupational, and clinical histories
were consistent with mild mental retardation.
Dr. Jones concluded Christina suffered from a mental disability that
rendered her unable to care for and control her children adequately. Although Christina meant well and was
motivated to obtain custody of her children, she lacked the cognitive and
coping resources to function as a marginally adequate parent. The fact that her children were young and two
had significant developmental problems made the necessary standard of care even
more out of her reach. While not an
abusive person by nature, she was prone to neglect and could become abusive
when feeling overwhelmed. Dr. Jones
concluded Christina’s developmental problems, her slow cognitive and adaptive
functioning and her ingrained personality problems significantly impaired her
capacity to care for her three young children especially given the fact that
two of them had their own developmental challenges. Thus, he too concluded Christina was
incapable of utilizing reunification services at all.
On May 16, 2013, at a
juvenile court adopted the agency’s recommendation and bypassed services for
Christina based on section 361.5, subdivision (b)(2), (10) and (11), and for
the father based on section 361.5 subdivision (b). The juvenile court also set a date for the
366.26 permanency hearing.
DISCUSSION
Christina
contends the juvenile court’s order setting a 366.26 hearing was erroneous
because the court did not allow her to present facts that would prove she was
capable of caring for her children or proof of her efforts to do so. In
the summary of the factual basis for the petition, Christina alleges she
believed the allegations of prior sexual misconduct by stepfather were false
because he denied them and they did not result in stepfather being criminally
prosecuted. She also contends she is a
loving mother who was actively involved in the children’s education and making
sure their medical needs were met. In
support of these assertions, Christina attached to her petition numerous school
and medical records that were not provided to the juvenile court. Christina, however, does not explain when or
how the juvenile court did not allow her to present these records or facts that
would have proven she was capable of caring for her children. Nevertheless, Christina requests
reconsideration of the juvenile court’s decision not to grant reunification
services.
As a
preliminary matter, we will not review the documentation Christina included
with her writ petition because it was not considered by the juvenile
court. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Further, we find no error in the juvenile
court’s order bypassing reunification services.
“There is a presumption in
dependency cases that parents will receive reunification services. [Citation.]
Section 361.5, subdivision (a) directs the juvenile court to order services
whenever a child is removed from the
custody of his or her parent unless
the case is within the enumerated exceptions in section 361.5[,] subdivision
(b). [Citation.] Section 361.5, subdivision (b) is a
legislative acknowledgement ‘that it may be fruitless to provide reunification
services under certain circumstances.’
[Citation.]†(
Cal.App.4th 87, 95-96 (Cheryl P.),
second italics added.)
The juvenile court found three
exceptions under section 361.5, subdivision (b) applied to Christina: the exceptions enumerated as subsections
(b)(2), (10), and (11). To deny a parent
reunification services under section 361.5, subdivision (b), the juvenile court
must find clear and convincing evidence to support one of the exceptions. (Randi
R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.) We will uphold the juvenile court’s
dispositional order if it is supported by substantial evidence. (Cheryl
P., supra, 139 Cal.App.4th at p. 96.)
Further, since we will conclude that substantial evidence supports the
court’s bypassing of reunification service under subdivision (b)(2) of section
361.5, we will limit our discussion to that subdivision.
In pertinent part, subdivisions
(a), (b), and (c) of section 361.5, read:
“(1) Family reunification
services, when provided, shall be provided as follows: [¶] … [¶]
“(C) For the purpose of placing
and maintaining a sibling group together in a permanent home should
reunification efforts fail, for a child in a sibling group whose members were
removed from parental custody at the same time, and in which one member of the
sibling group was under three years of age on the date of initial removal from
the physical custody of his or her parent or guardian, court-ordered services
for some or all of the sibling group may be limited as set forth in
subparagraph (B). For the purposes of
this paragraph, ‘a sibling group’ shall mean two or more children who are
related to each other as full or half siblings.
[¶] … [¶]
“(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: [¶] … [¶]
“(2) That the parent or
guardian is suffering from a mental disability that is described in Chapter 2
(commencing with Section 7820) of Part 4 of Division 12 of the Family Code and
that renders him or her incapable of utilizing those services. [¶] … [¶]
“(c) In deciding whether to
order reunification in any case in which this section applies, the court shall
hold a dispositional hearing. The social
worker shall prepare a report that discusses whether reunification services
shall be provided. When it is alleged,
pursuant to paragraph (2) of subdivision (b), that the parent is incapable of
utilizing services due to mental disability, the court shall order
reunification services unless competent evidence from mental health
professionals establishes that, even with the provision of services, the parent
is unlikely to be capable of adequately caring for the child within the time limits
specified in subdivision (a).†(§ 361.5,
subds. (a), (b), (c).)
Family Code section 7827,
subdivision (a) provides: “‘Mentally
disabled’ as used in this section means that a parent or parents suffer a
mental incapacity or disorder that renders the parent or parents unable to care
for and control the child adequately.â€
The evidence of two qualified experts is required to support a finding
under this section. (Fam. Code, § 7827,
subd. (c).)
Here, the juvenile court appointed
two psychologists to evaluate Christina, and each concluded Christina suffered
from borderline intellectual functioning that prevented her from benefiting
from reunification services. Further,
the record does not support Christina’s claim that the juvenile court did not
allow her to present evidence that she is capable of caring for her children or
of her efforts to do so. Accordingly, we
conclude that substantial evidence supports the juvenile court’s denial of
reunification services under section 361.5, subdivision (b)(2).
DISPOSITION
The petition for extraordinary writ
is denied. The opinion is final
forthwith as to this court.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Gomes, J. and Kane, J.
name="_ftn2" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
