In re A.M.

Filed 4/25/07 In re A.M. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

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S.C. (appellant), mother of the minors, appeals from the juvenile courts orders denying her reunification services. (Welf. & Inst. Code, 360, 361.5, subd. (b), 395; further undesignated statutory references are to this code.) Appellant claims reversal is mandated because it was not shown that the experts whose evaluations were the basis for denying services had the requisite qualifications. She also argues there was insufficient evidence that her mental disability was the cause of her inability to benefit from services. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2005, dependency petitions were filed by the Yuba County Health and Human Services Department (the Department) concerning the minors: 17-month-old A.M., two-year-old Z.M., four-year-old C.C. and five-year-old A.C. (the minors). The petitions, which were later amended, alleged in part that appellant had physically abused C.C. by throwing him into a wall and pulling him by the ear. According to the petitions, C.C. had bruising and abrasions on his face and arms. The petitions alleged, further, that despite being advised of the importance of maintaining a clean home due to the minors medical problems, appellants residence was littered with garbage and was overrun with flies and roaches. The petitions alleged that appellant and the father of the two older minors had been provided 12 months of family maintenance services prior to the filing of the petitions.

According to the detention report, the previous services had been provided [d]ue to professional[] concerns with [appellants] parenting, living environment, lack of follow through with medical appointments and [d]omestic [v]iolence with her partners, . . . Appellants services included individual therapy, parenting, and anger management. Appellants therapist stated that, although appellant verbalized an increase [sic] understanding of healthy parenting skills and at-risk behaviors in others, [] other elements in her behavior suggest that this awareness has not translated into behavior changes in her lifestyle. Furthermore, reports of abuse and neglect were received in June, August, September and November 2004, in addition to the allegations that led to the filing of the petitions.

At the jurisdictional hearing in July 2005, appellants attorney submitted the matters, and the juvenile court sustained the petitions as amended.

According to the social workers dispositional report, appellant, who was 24 years old, was hospitalized when she was seven years old after she attempted to hang herself, and she had been receiving medication since that time for depression and anxiety. Appellant disclosed that, up to one year earlier, she had used methamphetamine, which she later reported she began using at approximately age six.

A mental health assessment of appellant completed in October 2005 concluded that she had little insight into her behavior and recommended a psychological evaluation to determine whether she could benefit from services. In an addendum report, the social worker noted that appellant was attending all required classes at the residential program where she was residing but, in light of the extensive services that had already been provided to appellant, she recommended a psychological evaluation be prepared to help to clarify what other approaches might work in helping [her] succeed.

A psychological evaluation was completed by Shawn Johnston, Ph.D. Appellants testing revealed significant emotional and characterological disturbance and significant score elevations on the [s]chizophrenia and [m]ania scales. These results suggested that appellant was likely to be alienated from others and herself and was likely to have a great deal of family discord in her life as well as volatile relationships. These results also indicated possible difficulties with reality testing. Appellant also scored significantly high on the Narcissistic, Antisocial, Paranoia and Schizoid Personality Disorder scales. The elevation on the mania scales combined with appellants report that she suffered from depression raised the possibility that she had a bipolar disorder. It was of concern to Dr. Johnston that appellants manic tendencies did not seem to be controlled by the medication she was taking. Dr. Johnston noted that, [c]onsidering the overwhelming burden of psychopathology that afflicts this young woman, it is hardly surprising that her adult life has been so chaotic, violent, and self-defeating.

According to the evaluation, appellants diagnostic picture--involving learning disabilities, a substance abuse disorder, emotional disturbance, characterological problems and a possible thought disorder--was unusually severe and complicated and her prognosis was very, very guarded. Dr. Johnston opined that appellants psychological problems were of the type that are very difficult to overcome and would so complicate any attempt by her to effectively address her emotional and substance abuse issues that it was impossible to imagine . . . how she could achieve any genuine personal change or therapeutic progress at any time in the foreseeable future. He concluded that appellant was not capable of properly parenting the minors and that there was no combination of services that could restore her to adequate parenting within a 12-month period. As a result, the social worker recommended that a second evaluation be completed.

The second evaluation was conducted by Paul R. Wuehler, Ph.D. Dr. Wuehler found appellant had a recurrent major depressive disorder and, possibly, a bipolar disorder and a mixed personality disorder with narcissistic, antisocial, masochistic and paranoid features. Appellants test scores were highly elevated on the [o]vercontrolled [h]ostility [s]cale, suggesting unresolved anger and a tendency to ignore or suppress . . . anger/frustration feelings until all of a sudden the feeling[s] overwhelm the suppression process and erupt outwardly. According to Dr. Wuehler, it would be difficult to determine appellants mental health diagnosis and treatment needs until her substance abuse issues were resolved.

Dr. Wuehler determined that appellant was not capable of adequately caring for the minors at the time of the evaluation due to her recent substance abuse problem and the indication that she had a personality disorder. He also concluded that appellant was unlikely to sufficiently benefit from services such that she would be able to properly parent the minors within a 12-month time period.

According to an addendum report in February 2006, appellant was only doing the minimum at her residential program and nearly had been asked to leave. The social worker recommended that appellant not be provided services.

At appellants dispositional hearing, which occurred in March 2006, she testified about her participation in her residential program, maintaining that she had moved into the second phase of the program. She acknowledged she had experienced a setback at the program and was abiding by the resulting consequences that were being imposed on her. When asked about the physical abuse of the minors that led to the filing of the petitions, appellant denied she had done anything more than swatt[ing] them on the bottom.

Finding that appellant suffered from a mental disability that rendered her unable to utilize reunification services and that she was unlikely to reunify with the minors with the provision of services, the juvenile court denied appellant services. As reunification services previously were ordered for the minors fathers, the court confirmed the previously set six-month review hearing.

DISCUSSION

I

Appellant argues the juvenile courts orders denying reunification services must be reversed because there is no evidence that the two psychologists had the requisite qualifications. We disagree.

Pursuant to section 361.5, subdivision (b)(2), reunification services may be denied when the juvenile court finds by clear and convincing evidence that the parent . . . 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. The proof required to deny services on this basis is competent evidence from mental health professionals establish[ing] that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within the [statutory] time limits. ( 361.5, subd. (c); In re Joy M. (2002) 99 Cal.App.4th 11, 17 (Joy M.).)

Numerous courts, including our own, have engrafted onto proceedings to deny services under this subdivision the requirement in Family Code section 7827, subdivision (c), that the necessary findings be supported by evidence from two licensed psychologists with at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders. (Joy M., supra, 99 Cal.App.4th at pp. 17-18; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 473; In re Catherine S. (1991) 230 Cal.App.3d 1253, 1257 (Catherine S.) [addressing the precursor provisions to Family Code section 7820 et seq.]; In re Rebecca H. (1991) 227 Cal.App.3d 825, 839 [same].)

Appellant contends the evidence failed to establish whether either of the two psychologists who evaluated her had the requisite five years of postgraduate experience. As we shall explain, appellants failure to raise this objection in the juvenile court forfeits appellate review of the issue.

Generally, objections not raised in the trial court are forfeited for purposes of appeal (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17), including challenges to an experts qualifications (People v. Gonzalez (2006) 38 Cal.4th 932, 948). An exception to this general rule applies when a party claims the judgment is not supported by substantial evidence. (Tahoe National Bank v. Phillips, supra, at p. 23, fn. 17.)

Under circumstances similar to those in the present matter, the appellate court in Joy M., supra, 99 Cal.App.4th at pages 18 through 19, concluded that, for purposes of section 361.5, subdivision (b)(2), a parents failure to object to the experts qualifications at trial forfeited the issue on appeal. The appellate court held that an examiners qualifications relate to the competency of the evidence and are not an element of proof going to the merits of the case. (Id. at p. 19.) The court cited the requirement in Evidence Code section 720, subdivision (a), that a party must lodge an objection prior to an experts testimony to challenge his or her qualifications and concluded that nothing in the statutes [relating to denial of reunification services based on mental disability] compels the conclusion the Legislature intended to upset the traditional rules requiring a challenge to an experts competency to be made by an affirmative objection. (Ibid.)

Appellant acknowledges she did not object to the psychologists qualifications but claims that strict compliance with the provisions of Family Code section 7827, subdivision (d) [sic] is a prerequisite for denying services. Appellant relies on Catherine S., supra, 230 Cal.App.3d 1253, in which the court issued a peremptory writ directing the juvenile court to rehear the issue of whether the parent had a mental disability because one of the psychologists was not licensed, a requirement under Family Code section 7827, subdivision (a).

Catherine S. is distinguishable. The issue in that case was whether the expert qualifications required by Family Code section 7827 are applicable in proceedings to deny reunification services under section 361.5, subdivision (b)(2). (Catherine S., supra, 230 Cal.App.3d at pp. 1257-1258.) Neither party disputed that the parent had preserved his right to appeal the issue of the psychologists qualifications. Furthermore, Catherine S. involved affirmative evidence that one of the psychologists was not properly licensed, not a silent record as is before us in this matter. (Id. at p. 1256; see Joy M., supra, 99 Cal.App.4th at p. 18.) And, most significantly, the parent in Catherine S. argued at the dispositional hearing that the social services agency had failed to present evidence from two licensed psychologists. (Catherine S., supra, at p. 1256.) Appellant admits she made no such argument before the juvenile court.

Appellant argues that the specific qualifications delineated by Family Code section 7827 must take precedence over the general provisions in Evidence Code section 720 regarding the qualifications for testifying as an expert. We have no quarrel with this proposition. However, appellant fails to explain why the specificity of the qualifications renders them an element of proof rather than an issue relating to the competency of the evidence. We do not believe they do.

Finally, appellant claims she had no opportunity to object to the evaluations because they were never formally introduced into evidence. We find this argument disingenuous. The social workers addendum report in January 2006 contained the recommendation that appellant not be provided services based on her mental disability. Both psychological evaluations were attached to reports by the social worker and incorporated by reference into those reports. The juvenile court was required to receive in evidence the social workers reports before entering its dispositional orders. ( 358, subd. (b).) Appellants dispositional hearing occurred over a two-day period, at which the significance of the psychological evaluations was addressed at length by the court as well as appellants attorney. In sum, appellant had every opportunity to object to the evaluations. Her failure to do so is dispositive.

II

Appellant claims it was error to deny her reunification services because there was insufficient evidence that her mental disability was the cause of her inability to benefit from services. We reject this claim as well.

As discussed above, a parent may be denied reunification services if she is suffering from a mental disability that

renders her incapable of utilizing services. ( 361.5, subd. (b)(2).) A mental disability for purposes of the statute is defined as a mental incapacity or disorder that renders the parent or parents unable to care for and control the child adequately. ( 361.5, subd. (b)(2); Fam. Code, 7827, subd. (a).) Denial of services is reviewed for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)

Appellant complains that neither evaluation contained an explanation of why the mental conditions they described rendered appellant unable to benefit from services. Appellant fails to cite any authority requiring the psychological evaluations to describe how a particular mental disability leads to the inability to utilize services. In any event, there was ample evidence that appellants mental disability caused her to be unable to benefit from services.

Both psychologists opined that appellant was plagued by an array of possible mental health issues, including indications that she was suffering from bipolar disorder and a depressive disorder, in addition to various personality disorders. Dr. Johnston noted that appellants psychological problems were of the type that are very difficult to overcome and would greatly complicate any attempt by her to address her emotional and substance abuse issues such that significant change in the foreseeable future was unlikely. Dr. Wuehler felt that appellants psychological makeup combined with her history of receiving services yet continuing to have the same types of problems rendered it unlikely she could benefit from services. Both evaluators concluded that appellant was not capable of properly parenting the minors and that there was no combination of services that could restore her to adequate parenting within a 12-month period.

Appellants history of participating in services yet continuing to abuse and neglect the minors is ample evidence that her mental disabilities have prevented her from utilizing services. Had appellant wished to challenge this conclusion, she was entitled to cross-examine the evaluators or call her own experts to testify. She did neither. We conclude the evidence was sufficient to support the juvenile courts denial of reunification services.

DISPOSITION

The juvenile courts order is affirmed.

MORRISON , J.

We concur:

SIMS , Acting P.J.

HULL, J.

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