Otis M. v. Superior Court

Filed 10/2/06 Otis M. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane Cardoza, Judge.

George Cajiga, Public Defender, and Carmen Romero, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

____________________

*Before Vartabedian, A.P.J., Levy, J., and Cornell, J.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38-38.1) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to his daughter K. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Nine-year-old K. suffers from perinatally acquired human immunodeficiency virus (HIV) and has been a concern of child protective services since 1997 when she was removed from her mother. At the time, petitioner was serving a prison sentence for second-degree robbery. Both parents participated in court-ordered family reunification services until K.’s mother died in 1998. Petitioner went on to successfully complete services and K. was placed in his custody under family maintenance services. In 1999, the court terminated dependency jurisdiction. In 2000, the Fresno County Department of Children and Family Services (department) received information that K. was being medically neglected by petitioner, who is legally blind and also suffers from HIV. K. was malnourished and losing weight because of dental abscesses, which made eating painful and petitioner refused the required dental surgery to correct the problem. Petitioner also failed to take K. to monthly appointments with a specialized medical team at University Medical Center (UMC) and a pediatric immunologist from San Francisco who monitored K.’s medical progress. The department provided family maintenance services from January 2002 until petitioner requested the department terminate services in June 2002.

On three occasions from 1999 to 2003, the UMC medical team discussed the need to change K.’s medication with petitioner. However, each time, he resisted and stated he preferred to give her mega doses of vitamin C. Each time, he also agreed to return to the laboratory within a month to see if her viral load (number of HIV cells present in the blood) increased. However, he failed to do so. Meanwhile, K. became viral resistant to the medication she was taking and failed to achieve viral suppression, which is necessary to promote normal growth and development. Her weight and growth hovered between the 3rd and 5th percentile on the standard growth chart.

Not only was petitioner not cooperative with the medical team, he was openly belligerent. Consequently, the staff at UMC refused to treat K. as long as she was in petitioner’s custody after petitioner threatened to send the nurse practitioner “home in a body bag” if she attempted to separate him from his daughter.

K. continued under the care of the immunologist at San Francisco however petitioner continued to cancel appointments. In June 2005, the immunologist warned the department that K.’s situation was life-threatening and that she would be dead within a year if she did not receive appropriate treatment. Consequently, in August, the department removed K. from petitioner’s custody and initiated the instant dependency proceedings. The juvenile court ordered her detained and ordered petitioner’s right to make medical decisions on her behalf suspended pending further order of the court.

Meanwhile, after every other foster family in the county refused to take over K.’s care, K. was placed with a registered nurse on staff at UMC who had been involved in K.’s care since K. was one-month old. Within one month, K. gained five pounds, grew an inch and a half and her viral load decreased from 89,200 to 620. According to the immunologist, the K.’s condition so improved that her risk of succumbing to opportunistic illness was dramatically lowered. Because of her improved health, K. was able to undergo dental surgery. She had several teeth extracted in November and tolerated the surgery well.

In March 2006, at a contested jurisdictional hearing, the juvenile court adjudged K. a dependent of the court and ordered petitioner to complete a psychological evaluation to determine whether a mental disorder prevented him from benefiting from reunification services. The psychological evaluation was completed in May 2006. During his interview with the psychologist, petitioner denied any history of psychiatric problems. He stated he was incarcerated for two years for vehicular manslaughter and three years for assault with a deadly weapon and robbery. He was evasive about his military service, stating only that he performed “mercenary work.” When asked if he had homicidal thoughts, petitioner stated, “I have killed.” He elaborated by stating “I don’t think Uncle Sam would be happy with that” and “I’m well trained they created a killing machine.” However, he denied any recent homicidal ideation and denied threatening the staff at UMC. He said they misconstrued his real statement which was “I’m going to be about my baby’s business [until] I’m in a body bag.” He believed dependency proceedings were initiated because “somebody’s ego got popped.” He felt disrespected by the social workers and inadequately represented by trial counsel and felt the court did not have all the information.

The testing portion of the psychological evaluation required the psychologist to read the questions out loud to petitioner and record his answers because of petitioner’s legal blindness. After compiling his findings, the psychologist concluded that petitioner did not suffer from a mental disability. The psychologist was careful to note however that the absence of a clinical diagnosis did not mean that petitioner could adequately care for K. and he recommended the court carefully consider K.’s physicians’ opinions with respect to the issue of medical neglect.

In June 2006, UMC reported that, for the first time, K.’s tests revealed she had no HIV detectable in her blood, signifying that the medication was effectively suppressing the HIV infection. The doctors attributed her dramatic improvement to her caretaker’s compliance with the doctor’s directives and administration of the prescribed medication.

In its dispositional report, the department reported that, though K. and petitioner are strongly bonded, K. could not safely be returned to petitioner’s custody. According to K.’s doctors, she would die within two years if subjected to petitioner’s negligent mismanagement of her medical care. The department also reported that K.’s caregiver was willing to provide her a permanent plan of guardianship or long-term foster care. Consequently, the department recommended the court deny petitioner reunification services pursuant to section 361.5, subdivision (b)(12) because he was convicted of a violent felony (robbery) and set the matter for permanency planning.

Petitioner challenged the department’s recommendation and a contested hearing was conducted on July 13, 2006. At the hearing, petitioner did not dispute his violent felony conviction but argued that it was disingenuous for the department to recommend denial of services given the remoteness of his violent felony conviction, the lack of nexus between his conviction and K.’s removal, his successful completion of services subsequent to his conviction and the absence of any subsequent criminal activity. He further argued he and K. enjoyed a close and loving relationship, from which the juvenile court should find reunification services would be in K.’s best interest.

County counsel argued that the court’s prior provision of services should not impact its decision in this case where K.’s best interest would not be served by reunifying with petitioner. The juvenile court concurred and denied petitioner reunification services as recommended and set the section 366.26 hearing for November 16, 2006. This petition ensued.

DISCUSSION

The juvenile court may not order reunification services for a parent convicted of a violent felony, as defined in Penal Code section 667.5, subdivision (c), unless the court finds by clear and convincing evidence that reunification would be in the best interest of the child. (§ 361.5, subds. (b)(12) & (c).) Petitioner concedes, as he did at trial, that his felony conviction constitutes a violent felony under section 361.5, subdivision (b)(12). He also concedes there is no statutory requirement that the department establish a nexus between his felony conviction and his ability to care for K. Nevertheless, he argues, the “absolute lack of any relationship between [his] past and [K.’s] condition at the time of removal should be of concern to the court.” We disagree.

When an outright denial of services is warranted, as in this case, the court’s concern turns to whether reunification would nevertheless serve the child’s best interest. In the proper case, the lack of a relationship between the parent’s criminal past and the need to remove the child may factor into the best interest consideration. However, concerns about the parent’s criminal past are irrelevant where, as here, the juvenile court is deciding whether to provide reunification services to a parent who allowed his seriously ill daughter to deteriorate to a life-threatening situation because of his refusal to properly manage her medical care. Of equal concern is the prospect that the child, now restored to health, would once again deteriorate to her prior state if returned to her father’s care. Under the circumstances of this case, it was not an abuse of discretion to deny petitioner reunification services. If anything, it would have been an abuse of discretion if the court had ordered services. We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.