Carrie P. v. Sup. Ct.

Filed 4/18/06 Carrie P. v. Sup. Ct. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Carrie P. (mother) seeks an extraordinary writ to vacate the juvenile court's order denying her reunification services and setting a hearing to determine a permanent plan for her daughter, Noel T. (Welf. & Inst. Code, §§ 361.5, subd. (b), 366.26; Cal. Rules of Court, rule 38.1.)^[1] She contends the trial court erred when it denied reunification services on the basis of her mental disability because the evidence did not support the necessary finding that she would be unable to utilize those services. We deny the petition.

FACTS

Mother suffers from schizophrenia and post-traumatic stress disorder. She married N.T. (father) and gave birth to Noel. When Noel was a month old, mother had a psychotic episode and was placed in a mental health facility for observation. When Noel was two months old, mother took her to a church and told the pastor that father had told her to kill the baby. She asked the pastor to baptize Noel and, when that request was denied, left her on a pew while she went into the bathroom to douse herself with water. When mother returned, she pulled off one of several wet T-shirts she was wearing and wrapped Noel inside of it.

The San Luis Obispo County Department of Social Services (DSS) took Noel into protective custody and filed a petition alleging that mother could not care for Noel due to her mental illness, that father had endangered Noel by leaving her in mother's care, and that father's whereabouts were currently unknown. The court determined these allegations to be true after a jurisdictional hearing at which mother submitted on the social worker's report, and the case was set for a dispositional hearing.

DSS urged the court to deny reunification services to mother under section 361.5, subdivision (b)(2), which applies when "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." Mother was evaluated by two court-appointed psychologists to determine whether she suffered from a mental disability that would prevent her from utilizing services.

Jeanne Sterling, Ph.D. noted that mother had a long history of mental illness and often manifested psychotic symptoms. Even when medicated, mother exhibits a flatness of emotion and affect that interferes with her ability to interact with Noel. Dr. Sterling observed that mother has a history of noncompliance with her medications and has made several suicide attempts while unmedicated. As far as reunification services went, "If [mother] were given intense in vitro instruction in care-giving, it is probable that she would improve her parenting strategies. If she lived in a stable and supportive family system, then she could be an adjunct in Noel's care, however, this type of family support is not available."

William F. Alvarez, Ph.D. agreed with the diagnoses of schizophrenia and post-traumatic stress disorder, which he described as a "major mental illness that is of a chronic nature." He believed mother lacked insight into her condition, was incapable of parenting, and posed a risk to Noel's welfare. In his opinion, mother's "mental illness precludes her from being able to sufficiently benefit from reunification efforts within the proscribed time limits to be able to safely parent her child."

DSS relied upon the psychologists' reports at the dispositional hearing. Mother testified in response that she understood her mental illness and was committed to taking her medication now that she had a child. She was employed and was living with her own mother. Medical records showed that she had attended prenatal and well-baby exams. A mental health therapist who was working with mother reported that she had improved considerably and was close to being in remission.

The trial court found by clear and convincing evidence that mother suffers from a chronic mental disability that rendered her incapable of utilizing reunification services and that even with the provision of services, she was unlikely to be capable of caring for the child within the reunification time limits. Reunification services were denied and a permanency planning hearing under section 366.26 was set.

DISCUSSION

Mother argues that the trial court's order denying reunification services was unsupported by substantial evidence, because two doctors did not render an opinion that she would be incapable of utilizing those services. We disagree.

Section 361.5, subdivision (b)(2) allows the court to deny reunification services to a parent who (1) suffers from a mental disability that is described in Family Code section 7820 et seq., and (2) cannot utilize services as a result of that disability. Family Code section 7827, subdivision (a) defines a "mentally disabled parent" as one who suffers from a "mental incapacity or disorder that renders the parent . . . unable to care for and control the child adequately." Subdivision (c) of that same section provides that evidence from two board certified psychologists or psychiatrists is required to support a finding that a parent is mentally disabled.

Section 361.5, subdivision (b)(2) imports the Family Code requirement that the finding of disability be made by two qualified experts. (See In re Rebecca H. (1991) 227 Cal.App.3d 825, 838-841 [two experts required under version of section 361.5 that referred to mental health disability under former Civil Code section 232, subdivision (a)(6)].) But it does not require that both experts agree the parent will be incapable of utilizing services. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.) Rather, "the statute requires a showing only of evidence proffered by both experts regarding a parent's mental disability, evidence from which the court then can make inferences and base its findings." (Ibid.)

In this case, Dr. Alvarez expressly concluded that mother would not be able to benefit from services within the statutory reunification period. Dr. Sterling did not offer as direct an opinion on this point, but she noted that even with intensive services, mother would only reach the level of an "adjunct" in Noel's care. From these conclusions, which were amply supported by mother's extensive history of psychiatric problems, the court could reasonably infer that mother was incapable of utilizing services within the meaning of section 361.5, subdivision (b)(2).

The petition is denied.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J

PERREN, J.

Donald G. Umhofer, Judge

Superior Court County of San Luis Obispo

______________________________

J. Barry Smith for Petitioner.

James B. Lindholm, Jr., County Counsel, Cherie Vallelunga, Deputy County Counsel, for Real Party in Interest.

No appearance for Respondent.

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