Alice L. v. Super. Ct.
Filed 2/27/13
Alice L. v. Super. Ct. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CALIFORNIA
FIFTH APPELLATE DISTRICT
ALICE L.,
Petitioner,
v.
THE SUPERIOR COURT OF MERCED
COUNTY,
Respondent;
MERCED COUNTY HUMAN SERVICES
AGENCY,
Real
Party in Interest.
F066251
(Super.
Ct. No. JP000605)
THE COURT
name="_ftnref1" title="">*
ORIGINAL PROCEEDINGS; petition for
William A. Davis, for Petitioner.
No appearance for Respondent.
James N.
Fincher, County Counsel, and Sheri Lynn Damon, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
Alice L. seeks an extraordinary
writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders denying
her reunification services at a contested dispositional hearing (Welf. &
Inst. Code, § 358)
name="_ftnref2" title="">[1] and setting a section 366.26 hearing as to her
10-month-old son, Anthony. She contends
the juvenile court’s order denying her reunification
services under section 361.5, subdivision (b)(2) is error because there was
insufficient evidence that she suffers from a
required by the statute. We disagree and
deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Alice is a
teenage mother with a history of developmental, emotional and behavioral
problems. In October 2011, then
14-year-old Alice was pregnant with Anthony, the subject of this writ petition,
and a resident of Promesa Behavioral Health (Promesa), a level 12 group home
specializing in caring for young mothers and their young children. In anticipation of Anthony’s birth, the
Merced County Human Services Agency (agency) referred Alice to psychologist
Carol Johnson-Schroetlin to ascertain her diagnosis, level of cognitive and
social functioning, and ability to care for her child.
Dr.
Schroetlin conducted a complete
diagnosed Alice as having post-traumatic stress disorder, major depressive
disorder (moderate severity) and borderline intellectual functioning. Dr. Schroetlin opined that Alice does not
have the skills or ability to transition from foster care/residential treatment
to independent living and that, even with extensive services, she would
continue to depend on others to provide her the support and stability needed to
care for herself. Dr. Schroetlin also
opined that Alice lacked the capacity to safely and adequately care for a small
child.
In May
2012, the staff at Promesa observed several incidents that seemed to confirm
Dr. Schroetlin’s opinion. On one
occasion, Alice left 22-day-old Anthony unattended with a bottle propped in his
mouth. When redirected by the staff to
care for Anthony, Alice refused and sat on her bed eating. On another occasion, Alice was observed
aggressively grabbing Anthony’s legs stating, “He won’t be still.†She also yelled at him and threw a bottle at
the wall after becoming upset and frustrated with him during a feeding. She also forgot to support his head while
holding him. When these incidents
occurred, the staff had to remove Anthony from Alice and attend to his
needs.
In June
2012, the agency took then six-week-old Anthony into protective custody after
Alice yanked his arms and yelled at him, saying “Why are you crying, there’s
nothing wrong with you.†The agency also
filed a dependency petition on Anthony’s behalf under section 300, subdivisions
(a) (serious physical harm) and (b) (failure to protect) and declared the
whereabouts of his father unknown. The
agency attached Dr. Schroetlin’s psychological evaluation to the petition.
The
juvenile court ordered Anthony detained and the agency placed him in foster
care. In July 2012, the juvenile court
ordered Alice to undergo a second psychological evaluation.
In August
2012, Alice was evaluated by psychologist Michael B. Jones. Dr. Jones diagnosed Alice with a mood
disorder, post-traumatic stress disorder, disruptive behavioral disorder and
borderline intellectual functioning.
With respect to the latter, he stated that Alice functioned intellectually
at the level of an 11-year-old and that her full scale intelligence quotient
(IQ) was one point too high to warrant a diagnosis of mental retardation. Based on her diagnoses, Dr. Jones concluded
that Alice suffers from a mental disability that places Anthony at risk of
neglect and situational physical abuse.
He further concluded that Alice’s mental disability rendered her
incapable of utilizing reunification services “at all.â€
In its dispositional report, the agency
recommended that the juvenile court deny Alice reunification services under
section 361.5, subdivision (b)(2) because of her mental disability. Alice challenged the department’s
recommendation and a contested jurisdictional/dispositional hearing (combined
hearing) was conducted in November 2012.
Alice
testified at the combined hearing that she had learned to properly hold, feed
and diaper Anthony and learned ways to cope with her anger. Social worker Darrah Wilson testified that
she observed Alice interact with Anthony weekly for an hour since May 2012 and
that Alice was able to meet all of Anthony’s needs during that hour. She said there had not been any emergency
situations requiring her to intervene but that she had intervened to prevent
emergencies. She gave the example of
intervening to remind Alice to support Anthony’s head but said that occurred in
June 2012. She further testified that,
though Alice could tend to all of Anthony’s needs during her hour-long visit,
she required consistent supervision to do so.
Following
argument, the juvenile court denied Alice reunification services as recommended
and set a section 366.26 hearing. This
petition ensued.
DISCUSSION
The juvenile court may deny a parent reunification services
under section 361.5, subdivision (b)(2)
if it finds by clear and convincing
evidence that the parent suffers “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.†(§ 361.5, subd. (b)(2).) Family Code section 7827, subdivision (a)
defines the “mentally disabled†parent as one suffering a mental incapacity or
mental disorder that renders the parent unable to adequately care for and
control the child. A finding of mental
disability must be supported by the opinion of two mental health experts who
meet the qualifications set forth in Family Code section 7827, subdivision (c).
On a challenge to the juvenile court’s order denying
reunification services, we employ the substantial
evidence test, bearing in mind that clear and convincing
evidence requires a heightened burden of proof.
(In re Kristin H. (1996) 46
Cal.App.4th 1635, 1654.)
Alice contends there was insufficient
evidence that she suffers from a mental disability because her overall
intellectual functioning was in the borderline range of intelligence (i.e.,
full scale IQ of 71) and because she was not diagnosed with an “Axis I
psychosis related mental health diagnosis as that is defined in the DSM.â€
disability†as defined in the Family Code requires any particular mental health
diagnosis or that an IQ of 71 means that she does not suffer from a mental
disability. In other words, she
misconstrues the statute, which merely requires the opinions of two qualified
mental health experts that the parent suffers a mental disorder that renders
the parent unable to adequately care for and control the child. In this case, the juvenile court had before
it two such expert opinions.
Dr.
Jones was specifically asked to determine whether Alice suffered from a mental
disability under Family Code section 7827, subdivision (a). He determined that she had at least three
disorders, which he explained in useful detail.
He diagnosed her with a mood disorder (not otherwise specified) based on
her “significant problems with impulsivity, anger control and general mood regulation .…†He also diagnosed her with disruptive
behavioral disorder (not otherwise specified) because of her history of
behavior problems such as stealing, hoarding and aggression. In addition, he diagnosed her with
post-traumatic stress disorder. He also
determined that Alice could not take care of herself much less a child and that
her lack of parenting skills and knowledge of child development and poor
impulse control would place Anthony at risk of neglect and situational child
abuse.
Dr.
Schroetlin also determined that Alice had a mental disability, though she was
not asked that specific question and did not use the term “mental
disability.†Nevertheless, her opinion
qualifies because she diagnosed Alice as having two
post-traumatic stress disorder and major depressive disorder, and concluded
that Alice lacked the capacity to safely and adequately care for a small
child.
Thus,
based on the record before us, we conclude substantial evidence supports the
juvenile court’s order denying Alice reunification services under section
361.5, subdivision (b)(2). Accordingly,
we deny the petition.
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Poochigian, J. and Peña, J.
name="_ftn2" title="">[1] All
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
