Filed 12/14/17 In re D.O. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
----




In re D.O., a Person Coming Under the Juvenile Court Law. C082241


YUBA COUNTY HEALTH AND HUMAN SERVICES DEPARTMENT,

Plaintiff and Appellant,

v.

L.O.,

Defendant and Respondent.

(Super. Ct. No. JVSQ160000004)


Appellant Yuba County Health and Human Services Department (Department) appeals the juvenile court’s order continuing reunification services to L.O., mother of the minor D.O., and denying the Department’s request for a second psychological evaluation of mother for purposes of invoking the bypass provisions of Welfare and Institutions Code section 361.5, subdivision (b)(2), which allows for bypass of reunification services when the parent “is suffering from a mental disability . . . that renders . . . her incapable of utilizing those services.”
Subsequent to the filing of the Department’s opening brief on appeal, the juvenile court entered an order terminating mother’s reunification services and setting the matter for a selection and implementation hearing pursuant to section 366.26. We requested that the parties provide supplemental briefing regarding why the appeal should not be dismissed as moot.
In its supplemental brief, the Department argues the issues presented on appeal constitute matters of continuing public interest and are likely to reoccur, and we should exercise our inherent discretion to resolve them. We agree the matter is one of continuing pubic interest that has the potential to reoccur and, therefore, we address the merits. After considering the Department’s claims on the merits, we reverse the juvenile court’s order.
I. BACKGROUND
On November 1, 2015, mother brought the two-year-old minor into the emergency room. Witnesses stated mother ran a red light on her way to the hospital, left her car running at the hospital entrance, and ran into the emergency room crying uncontrollably, claiming the minor had been shaken and she and the child had been held captive for two days. While the minor did not appear to be in any distress, mother was pacing the hallways, rambling and speaking gibberish, and talking about people “coming through the walls.” Mother’s urine sample, which was not screened for marijuana, tested negative for all other drugs.
Treating nurse H. Berry told the social worker that when Berry initially attempted to treat the minor, mother said, “ ‘[Y]ou know about the people in the walls!’ ” Mother told Berry that “the people in the walls were now in her apartment and were shoving pills down her throat.” Berry stated mother had previously been treated at the hospital on November 25, 2014, at which time she told Berry there were “people in the walls who talk to her” and said “she had been raised in group homes and could never go to a foster home because she was too mentally ill.”
The minor’s treating physician, Dr. Rabey, conducted tests on the minor but found nothing abnormal. Mother stated she and the minor had been held captive for two years and the minor had been shaken by mother’s boyfriend.
Social Worker Cheryce Williams met with mother, who initially said her boyfriend had shaken the minor, but then recanted the accusation and claimed someone else was to blame. Williams noted mother was unable to make coherent and logical statements and was jumping from topic to topic, and changed her story regarding when the minor had been shaken. Mother was also unable to identify the correct month or day of the week.
Because mother was not threatening to injure herself or others, she was permitted to stay with her friend, Christine, until the following day.
On November 2, 2015, Christine contacted Yuba County Child Welfare Services (CWS) emergency hotline to report that mother was acting bizarre, yelling at the walls, and covering the mirrors with towels, making Christine fearful for her own safety and the safety of the minor. Following a welfare check, mother agreed to go to Sutter Yuba Behavioral Health (formerly Sutter Yuba Mental Health) (SYBH), where she was placed on a psychiatric hold. The minor was left in the care of Christine.
Mother remained on psychiatric hold at SYBH for eight days, during which staff opined that she should not parent a child without support. Mother contacted her aunt, Tonya, requesting that she take guardianship of the minor. Mother prepared a handwritten statement to that effect, and signed a consent to appointment of guardian on November 5, 2015. On November 10, 2015, Tonya filed for legal guardianship of the minor.
On November 10, 2015, mother left treatment against medical advice. Staff verbally diagnosed mother with adjustment disorder with brief psychotic disorder with acute stress, and recommended counseling with psychiatric follow-up and substance abuse treatment. Mother was prescribed antipsychotic medication, but told social worker Williams she would not take it because she thought it was for sleep and felt she did not need it.
Mother visited the minor at Tonya’s home on November 12, 2015. Then, on November 15, 2015, mother contacted law enforcement officials and, with their assistance, forcibly removed the minor from Tonya’s home in her absence.
The following day, pursuant to the order of the probate court, CWS facilitated return of the minor to Tonya as temporary legal guardian.
On January 11, 2016, the Department filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b) alleging the minor was at substantial risk of serious physical harm and neglect due to mother’s substance abuse and mental health issues.
January 11, 2016, Detention Hearing
According to the January 11, 2016, detention report, mother had not started recommended substance abuse treatment because she “does not have time” and was believed to be using marijuana against medical advice. Although mother was visiting the minor, she missed several scheduled visits in the CWS office and declined several additional visits arranged by the minor’s caretaker. The social worker noted mother needed to establish ongoing mental health services and required further psychological evaluation in order to determine the appropriate treatment regimen to provide safety and stability for the minor, and concluded mother was unable to safely care for the minor.
At the detention hearing, the juvenile court ordered the minor detained and continued temporary placement with Tonya. The court further ordered that mother submit to random drug testing and a psychological evaluation, and that supervised visitation occur twice weekly.
Jurisdiction Report
The jurisdiction report filed February 1, 2016, stated social worker Williams spoke with Tonya, who indicated she “no longer feels comfortable with having [mother] visit with [the minor] at her home because of [mother’s] behaviors” and “[mother] continues to exhibit severe mood swings and has continually expressed suicidal ideations since [the minor] was detained.” Williams also spoke with the minor’s maternal great-grandmother, who stated mother has exhibited symptoms of mental illness since childhood and continues to express suicidal ideations.
February 10, 2016, Jurisdiction Hearing
At the continued jurisdiction hearing, mother’s counsel requested appointment of a guardian ad litem for mother due to mother’s inability to understand the nature of the proceedings or to assist counsel in a rational manner in the conduct of a defense pursuant to Penal Code section 1367. The juvenile court granted the request and appointed Carroll Peiffer as guardian ad litem for mother.
February 17, 2016, Continued Jurisdiction Hearing
Guardian ad litem Peiffer informed the court that mother requested a hearing and opportunity to be heard to determine whether appointment of a guardian ad litem on her behalf was in fact necessary. After a hearing followed by an in camera hearing with mother, mother’s counsel, and mother’s proposed guardian ad litem, the court determined mother would benefit from the appointment of a guardian ad litem and left the appointment of Peiffer in place.
March 2, 2016, Continued Jurisdictional Hearing
The juvenile court sustained the allegations in the petition, adjudged the minor a dependent child, ordered continued temporary placement of the minor with Tonya, and ordered supervised visitation a minimum of two times per week. The court discussed with all counsel a continuance of the dispositional hearing to allow for a psychological assessment “to determine what services are necessary for [mother].”
Dispositional Report Filed March 21, 2016
According to mother’s maternal grandmother (who raised mother since infancy), mother was diagnosed with ADHD (attention deficit hyperactivity disorder), bipolar disorder, and schizophrenia and participated in ongoing therapy for six years with Dr. Schiro.
The dispositional report stated mother failed to follow through with the recommended mental health treatment and substance abuse treatment after having left the hospital against medical advice. Mother tested positive for marijuana, methamphetamine, and amphetamine on March 10, 2016, despite her claim that she stopped smoking marijuana one month prior and her denial of methamphetamine use. The social worker opined that the combination of mother’s mental illness and substance abuse places the minor at “great risk of abuse or neglect” if left in her care.
Dr. Wendy Lyle completed a psychological assessment of mother on March 17, 2016. Although her written report was not yet available, Dr. Lyle verbally reported she “d[id] not believe that [mother] c[ould] benefit from reunification services.” The Department recommended that mother undergo a second psychological assessment to determine whether reunification services would be beneficial.
March 24, 2016, Dispositional Hearing
As of the dispositional hearing, the court and all parties had yet to receive a copy of Dr. Lyle’s report. Mother’s counsel and the guardian ad litem objected to a second psychological assessment before receipt and review of Dr. Lyle’s report and argued services should be initiated to “see if they work.” The Department requested, and minor’s counsel agreed to, a continuance of the dispositional hearing until receipt of Dr. Lyle’s report. The Department argued mother would not benefit from services, noting it intended to pursue bypass of services pursuant to section 361.5, subdivision (b)(2).
The court denied the Department’s request for a second psychological assessment and continued the matter for receipt of Dr. Lyle’s report, stating:
“You know what, we know what’s wrong. [Mother] suffers from mental illness. We know her drug abuse exacerbates it because she’s testing positive. She’s telling us that she’s not going to—or she’s not using drugs. I think that [the minor] deserves some permanency sooner than later, but I think we could give her services. I don’t know that we’ll know what can be done without necessarily getting Dr. Lyle’s report. It’s unfortunate, but it’s—she’s on a path that she doesn’t want to stop using drugs. It’s—I think we give her an opportunity to try. And we’re going to know within six months. He’s two years old.
“[¶] . . . [¶]
“I just feel by sending it off to expert after expert and then getting her own expert, we’re dragging it out. I think we can know she needs mental-health treatment.
“[¶] . . . [¶]
“And she needs substance-abuse treatment. I think Dr. Lyle’s probably right, she’s not going to be able to reunify, but why not give her a chance and see if within six months she can take these services seriously and turn it around.
“So I’m not going to order the second psychological assessment. Let’s put it over, see what the doctor recommends, get services started. And I don’t hold out very much hope that—we can battle it out. There can be a difference of opinion of doctors here and there. I’d just rather—she clearly has mental health issues, will make it challenging, I think, for her to participate, but I’d like to know if she’s going to start taking medication that’s been ordered by the doctor. And if she doesn’t, then she’s not going to successfully complete services. I’d like to see if she stays away from drugs. If she doesn’t, she’s not going to successfully complete services and we’ll be back here in six months from the date of disposition, and we’ll know whether it worked or not.”
The court instructed mother to start First Steps (the program recommended by SYBH), call in daily to drug test, stop using drugs, and take her medication as prescribed.
First Addendum to Dispositional Report
On April 19, 2016, the Department filed an addendum to disposition report and attached a copy of Dr. Lyle’s report that stated, among other things: mother was diagnosed with “Bipolar I Disorder, mixed, with psychotic features, R/O Posttraumatic Stress Disorder, Cannabis Use Disorder, Severe, Caffeine related disorder, and Stimulant Use Disorder, Amphetamine-type;” mother’s mental health problems were “likely to interfere with her ability to safely parent” the minor; and, given mother’s “history of untreated mental illness, refusal of medication, and zero insight into her problems,” mother would be “highly unlikely to benefit from services.” In the event the court determined to offer services, Dr. Lyle recommended individual counseling, drug and alcohol treatment, parenting education, medication, and domestic violence and codependence education.
April 20, 2016, Continued Dispositional Hearing
Based on Dr. Lyle’s opinion that mother would be unlikely to benefit from reunification services within the statutorily-allowed timeframe, the Department advised the court that it was proceeding with bypass pursuant to section 361.2, subdivision (b)(2), and requesting that the court order a second psychological evaluation.
Acknowledging that mother had not availed herself of any of the services offered to her during the prior month, there was little chance additional services would be effective, and bypass “would probably apply” in light of Dr. Lyle’s report, minor’s counsel argued the quickest way to achieve permanency for the minor was to provide mother with six months of services. The court agreed with minor’s counsel, stating:
“It’s just—we are going to move along much more quickly if we provide services. You know, a miracle can happen. She might stop using drugs. She might get antipsychotic medication. And is it likely? Probably not.
“But we will know that sooner than if we litigate, get a second psychological eval[uation], which is never just a second psychological evaluation; it is always a third psychological evaluation. And we are going to find out the same thing, I’m sure, that Dr. Lyle has recommended. And by the time we get there, we will have already been past the three-month stage or six-month stage.
“Just, you know, it’s a very sad situation. But I think if Mom were to address the drug problem and mental illness—granted it’s a significant mental health history in the family. I know that. But for those who cooperate, we have had people—there are people in the community who can be successful when they are willing to cooperate with treatment and have a necessary insight.
“And you are right; [mother] does not have the insight. I recognize that. But instead of litigating this to death, we are going to know very quickly whether she is going to cooperate or not. Right now she is not cooperating. Could that change if we grant services and she does what is recommended by Dr. Lyle and participates in services? Maybe. Maybe not. But we will know sooner than later.
“And that’s the reason I stated last time. This child deserves permanency. This could go on for quite some time and even be challenged and delayed even longer.
“So I think either she is going to stop using drugs and get the psychological, psychiatric help she needs or she is not, and we are going to know it very quickly.”
The Department sought the court’s clarification on whether “the Court [wa]s making the finding that the Department ha[d] not met, by clear and convincing evidence, its burden for dispositional hearing.” The court stated:
“No. I’m following the Judge Len Edwards approach, and I think it makes sense in this case at this time. Either we—I know your concern is, what services do we provide? We provide her exactly what Dr. Lyle has stated. She is going to address substance abuse. She can have a medication evaluation and seek psychiatric treatment. And if she doesn’t, I don’t see how she can comply with the case plan.
“It’s not as though services aren’t being provided. We all know what—I—I think there are certainly services the Department can provide. I haven’t ordered it yet. I kind of gave her an opportunity to have a whole additional month of services because of the delay. And if she is not doing it, that is of concern. But there are many parents who are not even sitting in the chair, who don’t even come to court, that I continue to order services for, and we know what’s going to happen. They are not doing it. But I’m hopeful either she is going to turn it around very quickly or she is not.
“And, as stated by counsel, you can return to the court with [section] 388, request to change a court order, in a shorter time frame than even the six months of services that I’m going to order. So I think that that meets the needs of [the minor]. I think that is in the best interest of [the minor]. And I have also considered the fact of her own Juvenile Court history.
“And there have been parents . . . that we did not think would make it, and they did not make it, but I felt it appropriate, because they are victims of the system, that they should be entitled to the chance to participate instead of cut off at the pass.
“And it’s unfortunate, but she is also a child of the system, and I want to see that we at least try, give her services, and hopefully she will take advantage of those services.”
The court found by clear and convincing evidence that return of the minor would create a substantial risk of physical or emotional harm and placement was appropriate and necessary for his safety, and continued the minor as a dependent child of the court. The court ordered the Department to provide reunification services to mother, approved the case plan attached to the first addendum to the dispositional report, and denied the Department’s request for a second psychological evaluation.
The Department filed a timely notice of appeal.
November 9, 2016, Six-Month Review Hearing
At the six-month review hearing, the court found return of the minor to mother’s custody would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the minor due to mother’s continued mental instability and substance abuse. The court further found mother was provided reasonable services but made no progress towards alleviating or mitigating the issues necessitating removal of the minor. The court terminated mother’s reunification services and set the matter for a selection and implementation hearing.
March 29, 2017, Selection and Implementation Hearing
At the selection and implementation hearing, the court found there was clear and convincing evidence the minor would likely be adopted and terminated mother’s parental rights. The court further ordered visitation between mother and the minor at the discretion of the prospective adoptive parents.
II. DISCUSSION
The Department contends the juvenile court abused its discretion when it failed to rely on the standards set forth in section 361.5, subdivisions (b)(2) and (c) in ordering reunification services for mother and denying the Department’s request for a second psychological evaluation. The Department further contends the court’s order for reunification services is not supported by substantial evidence. We agree that, under the circumstances presented here, the juvenile court abused its discretion in ordering reunification services.
Following the removal of a minor from parental custody, the parent is ordinarily provided with reunification services pursuant to section 361.5, subdivision (a), which provides that whenever a child is removed from a parent’s custody, the juvenile court shall order reunification services for the parents “[e]xcept as provided in subdivision (b) . . . .”
Subdivision (b) of section 361.5 provides that services need not be provided 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.” In those circumstances, “the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.)
“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, subd. (c)(1); see In re Rebecca H. (1991) 227 Cal.App.3d 825, 844; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Because the minor here was under the age of three, the time limitation in this case was six months. (§ 361.5, subd. (a)(1)(B).)
Because reunification orders are within the juvenile court’s broad discretion to fashion a disposition in the minor’s best interest, we review such orders only for abuse of discretion. (See In re Baby Boy H., supra, 63 Cal.App.4th at p. 474.) Although the court was required to make its supporting findings by clear and convincing evidence, we do not apply that standard; we view the evidence most favorably to the order and uphold the order if substantial evidence supports it. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581; In re William B. (2008) 163 Cal.App.4th 1220, 1229.) Here, as we explain, the findings the court made in purported support of its decision were not supported by substantial evidence, rendering the court’s decision to grant mother reunification services an abuse of discretion.
It was undisputed that mother was suffering from mental health issues that, at best, placed into serious question her ability to utilize services. The dispositional report stated mother had been diagnosed with ADHD, bipolar disorder, and schizophrenia and had been undergoing therapy for the past six years. Mother was initially placed on an eight-day psychiatric hold, but left the psychiatric facility against medical advice and thereafter continued using drugs, refused to participate in substance abuse treatment, and continued to exhibit signs of mental illness. She was ordered by the juvenile court to submit to a psychological evaluation and random drug testing. Although a guardian ad litem was appointed to her, mother failed to follow through on recommended mental health and substance abuse treatment and tested positive for marijuana, methamphetamine, and amphetamine. After conducting a psychological evaluation of mother, Dr. Lyle did “not believe that [mother] c[ould] benefit from reunification services.”
At the March 2016 dispositional hearing, the juvenile court noted mother “suffers from mental illness,” which is exacerbated by her drug abuse, and said mother “needs substance-abuse treatment” but “doesn’t want to stop using drugs.” The court stated, “I think Dr. Lyle’s probably right, she’s not going to be able to reunify” and held out little hope of mother’s success, but nonetheless denied the Department’s request for a second psychological assessment and continued the matter one month, ordering that services be provided to mother in the interim.
No additional evidence was presented at the dispositional hearing on March 24, 2016, to demonstrate mother would avail herself of services, let alone benefit from those services within the statutory six-month period. In fact, the evidence was to the contrary. Mother was continuing to deny drug use despite having tested positive for marijuana, methamphetamine, and amphetamine on March 10, 2016. She denied suffering from any mental health issues and had not yet begun mental health treatment as of March 21, 2016, telling the social worker it interfered with her employment and schooling. Dr. Lyle’s report identified mother’s numerous mental health issues and noted mother “adamantly maintain[ed] she d[id] not have a mental illness.” The report concluded mother’s mental health problems were “likely to interfere with her ability to safely parent” the minor and, given mother’s “history of untreated mental illness, refusal of medication, and zero insight into her problems,” mother would be “highly unlikely to benefit from services.” Although the court agreed with Dr. Lyle’s assessment that mother lacked insight into the issues facing her and was indeed not cooperating with the recommended services, the court denied the request for a second psychological assessment and ordered that services be provided, expressing concern that the minor “deserves permanency” and “[t]his could go on for quite some time and even be challenged and delayed even longer.” As the Department aptly notes, however, the juvenile court has wide discretion in the appointment and selection of expert witnesses and to regulate the order of proof. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 833; Evid. Code, § 320.) In any event, given mother’s adversity to treatment and medication, services would likely be fruitless, delaying the minor’s permanency unnecessarily.
Next, when asked whether the court’s decision was based on a finding that the Department had not met its burden of clear and convincing evidence that services need not be provided, the court stated, “No. I’m following the Judge Len Edwards approach, and I think it makes sense in this case at this time,” (italics added) explaining only that mother should be provided with the services recommended by Dr. Lyle and see how she responds. Because the court did not articulate any explanation of the mechanics of the approach it was using or what the approach otherwise entailed, and given the undisputed evidence of mother’s mental illness and adversity to treatment, we find the court’s determination was arbitrary and capricious.
Further, the court glossed over the fact that mother failed to avail herself of the month of services she had already been given, stating, “[I]f she is not doing it, that is of concern. But there are many parents who are not even sitting in the chair, who don’t even come to court, that I continue to order services for, and we know what’s going to happen. They are not doing it. But I’m hopeful either she is going to turn it around very quickly or she is not.” While the court’s hope in mother’s willingness and ability to participate in and benefit from services is admirable in the face of contradictory behavior, there is insufficient evidence to support the court’s finding that mother was capable of utilizing services in spite of her mental disability.
Finally, the court indicated it had “considered the fact of [mother’s] own Juvenile Court history,” stating, “[mother] is also a child of the system, and I want to see that we at least try, give her services, and hopefully she will take advantage of those services.” While the disposition report notes mother was raised by her grandparents due to her own mother’s “severe mental illness,” neither the disposition reports nor Dr. Lyle’s report contain any indication that mother had her own juvenile court history as a minor.
The juvenile court must consider the minor’s need for stability and permanency. (In re William B. (2008) 163 Cal.App.4th 1220, 1228-1229.) “[T]here must be some ‘reasonable basis to conclude’ that reunification is possible before services are offered to a parent who need not be provided them.” (Ibid.) Under the circumstances here, reunification services would only add to the time the minor was deprived of a stable and secure home and, given mother’s mental illness, such services would not make reunification of this family more likely.
The juvenile court abused its discretion in denying the Department’s request for a second psychological evaluation of mother and granting reunification services to mother.
III. DISPOSITION
The juvenile court’s April 20, 2016, order continuing reunification services to mother and denying the Department’s request for a second psychological evaluation of mother is reversed. However, in light of the juvenile court’s March 29, 2017, order terminating mother’s parental rights, no further action is required.


/S/

RENNER, J.



We concur:


/S/

MURRAY, Acting P. J.


/S/

HOCH, J.