In re A.S.















Filed 3/23/17 In re A.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re A.S., a Person Coming Under the Juvenile Court Law.


FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

J.S.,

Defendant and Appellant.


F073089

(Super. Ct. No. 15CEJ300163-1)


OPINION
APPEAL from an order of the Superior Court of Fresno County. Ralph Nunez, Judge.†
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
This appeal arises out of a juvenile dependency action. The subject of the action below is A.S.,[1] currently 15 years old. The appellant is J.S., A.S.’s father (father).[2]Father appeals from the dispositional order following a hearing pursuant to Welfare and Institutions Code section 361,[3] in which the juvenile court ordered father to participate in a mental health evaluation and recommended treatment. Father contends the order was an unnecessary intrusion into his privacy and was, therefore, an abuse of discretion.
We find no abuse of discretion with respect to the dispositional orders and affirm.
STATEMENT OF THE CASE AND FACTS
Detention 2012
In June 2012, A.S., then 10 yearsold, came to the attention of the Yolo County Department of Social Services when it received an allegation of suspected child abuse and neglect against A.S.’s mother.A section 300 petition was filed in July 2012 alleging a failure to protect and risk of serious emotional damage.Mother was provided reunification services.Father, who did not appear at any of the court hearings, was considered the nonoffending parent and did not complete the offered services.
A.S. was reunified with mother in April 2014.The Yolo County Dependency Court issued a custody order stating mother had sole physical and legal custody of A.S. Father did not have visitation.
Detention 2015
On June 10, 2015, A.S., now age 13, came to the attention of the Fresno County Department of Social Services (department), when it was reported that mother slapped A.S. twice on the face and threatened to punch her.When the social worker responded to mother’s home on June 16, 2015, mother stated that A.S. was committed to the Community Regional Center two days earlier because A.S. tried to leave home and wanted to commit suicide.Mother additionally reported thatA.S. threw a fit, punched the walls, took a knife from the kitchen, and threatened to cut herself. She also allegedly took six sleeping pills.Mother denied slapping or threatening to punch A.S.
Mother reported A.S. had suffered with mental health issues since the age of four, and was diagnosed with bipolar disorder and paranoid schizophrenia in 2011, for which she was taking medication.Mother described A.S. as typically argumentative, disrespectful and difficult to raise.A.S. had previously spent 16 months in a home for severe cases of mental and behavioral issues.When A.S. returned home, things were fine for a while before she again started having outbursts.In addition, mother recounted that A.S. had been “5150’d” 10 times in the past year.Mother previously admitted having her own mental and physical health issues. Mother was working with a psychiatrist and taking psychotropic medication.
Mother claimed father had no rights as to A.S. and did not participate in previous services.She also claimed father refused to seek drug treatment and had his own mental health issues, as he was schizophrenic.
A.S. was placed in an inpatient psychiatric facility, where it was determined that she needed additional psychiatric care.She was despondent over the breakup of a relationship and arguments with her mother.When A.S.was to be released about a week later, mother refused to care for her “at this time,” and A.S. was transported to the department for temporary placement.
A.S. reported that mother slapped her face when she tried to cut herself. According to A.S., mother slapped her in the face weekly.A.S. stated that she was sexually molested from age three to 10 by her stepbrothers, but that mother did not believe her.The department determined that, due to the risk of harm to A.S., a dependency petition be filed on her behalf.
The department found that father, who requested placement of A.S., was willing and able to provide care for A.S.At the time, father was residing with his girlfriend of 14 years and his three children, who were A.S.’s half siblings.Father stated he was willing to provide care for A.S., meet her mental health needs and seek counseling for her, including addressing the sexual abuse issue.
Father had had limited contact with A.S. since she was six years old.While father had not observed any of A.S.’s behaviors that were discussed, he had heard about A.S. cutting herself.When asked about the previous petition filed in Yolo County, father said he completed parenting classes, but did not have time to complete the other services.Father admitted past drug use and said he completed both an inpatient and outpatient drug program.When asked to do so, he declined to drug test and refused a request for documentation to show proof of completion of previous reunification services.
Mother refused to allow A.S. to live with father, but also refused to allow her to return home.The department reported it could not consider placement of A.S. with father because of the prior custody order and because mother would not agree to it. As a result, the department filed a JV-180 petition to request A.S. be permitted to be placed with father.A.S. was excited about seeing father, as she had not spent time with him since she was six yearsold.
Section 300 Petition
The department filed a section 300 petition alleging A.S. came within the jurisdiction of the juvenile court because mother was not able to meet A.S.’s mental health needs, and there was a risk of serious emotional damage to the child.
Detention Hearing June 25, 2015
At the detention hearing on the petition, the department recommended A.S. be detained temporarily and that the matter be set for a combined jurisdiction and disposition hearing, at which time the department might recommend possible return to mother, placement with father, or continued out-of-home care.
Father, represented by counsel, asked for placement of A.S.The juvenile court acknowledged that father was the “nonoffending noncustodial” parent, but stated “there may be found detriment in place.”It then ordered A.S. be temporarily removed from mother’s custody with a general placement order.Both mother and father were given supervised visits with A.S.A combined jurisdiction and disposition hearing was set for July 30, 2015.
Jurisdiction/Disposition Report
The report prepared in anticipation of the jurisdiction/disposition hearing stated A.S. was in a group home, participating in weekly therapy and a monthly psychotropic medication evaluation and was taking prescribed medication.
Mother wanted to reunify with A.S. once her behavior stabilized. Father wanted placement of A.S. as well.A.S. wanted to live with father because she did not get along with mother.
The department noted a February 2013 review report from A.S.’s prior dependency case, in which father had shown only sporadic interest in A.S.In 2008, when he last saw A.S., he had restricted visits for which he had to pay $35 for each supervised visit, but he discontinued the visits.When mother left town with A.S., father did not attempt to look for her.When the department contacted father in 2012, he expressed happiness to reconnect with A.S., but showed “uneven participation” in services and failed to contact the department or A.S. for another four months.He refused to give the department documentation of services in which he reportedly engaged. Services for father were terminated in July 2013 after he failed to engage in services and failed to visit or develop a meaningful relationship with A.S.
In the current dependency case, father stated he did not need any services and wanted to discuss participating in reunification services with his attorney before he agreed to anything.The department, noting father was hesitant to cooperate earlier, assessed it would not be in A.S.’s best interest to orderreunification services for father.
Two supervised visits occurred between A.S. and father, one in June and one in July 2015. The visits reportedly went well.
The department recommended A.S. not be returned to mother, but that mother be provided reunification services.
Jurisdiction Hearing July 30, 2015
At the jurisdiction hearing July 30, 2015, mother submitted on the now amended dependency petition.The department recommended no reunification services for father pursuant to section 361.5, subdivision (b)(1). Father objected.
The juvenile court sustained the petition. The matter was continued for contested disposition on September 3, 2015.
Addendum Report July 30, 2015
In an addendum report, the department recommended father be denied reunification services, pursuant to section 361.5, subdivision (b)(10)[4], because, during the 2012 dependency case, it was reported that father had an extensive history of substance abuse and related criminal convictions and had not complied with the case plan requiring domestic violence counseling.
The report stated father did not want to speak to the social worker because he had already completed an addiction severity index assessment (ASI) and a parenting class in the prior dependency case, but that Yolo County did not accept his certificates.Instead, father wished to first speak with an attorney.He also said he was not going to do current reunification services because he did not need them.
According to father, he completed an inpatient substance abuse treatment and after-care program per probation, before A.S. was born in 2001.Father and mother then separated because she did not want to change her lifestyle.Father admitted not visiting A.S. until 2003 when he got full custody after mother went to jail. A.S. was in his custody until 2008, when there were allegations of physical abuse against father and A.S. was returned to mother.Father said he paid $35 for a visitation center, but when mother did not consistently bring A.S. to visits, he stopped visits.He did not see her again until 2012.Father claimed Yolo County did not contact him until September 2012. He stated they did not fully inform him of the services he needed to complete and did not accept the fact that he had previously completed services.He acknowledged reunification services were terminated as to him.
Father admitted he was not aware of A.S.’s mental health issues. He claimed there was no history of mental health issues on either his or mother’s side of the family.
Father’s Statement of Contested Dispositional Issues
On August 29, 2015, father filed a statement of contested issues in response to the department’s recommendation to not offer services pursuant to section 361.5, subdivision (b)(10). As argued by father, the subdivision was inapplicable to father because the law required that the parent had failed to reunify with a sibling or half sibling of the minor at issue, and father had not previously failed to reunify with a sibling or half sibling of A.S.
Scheduled Hearing September 3, 2015
At the September 3, 2015, hearing, the department acknowledged it had no legal basis to deny father reunification services.Father’s counsel stated father wanted custody of A.S. and requested unsupervised visits. While he wanted services, he did not want to do a mental health assessment.Father did not think A.S. belonged in a “Level 14 group home” recommended by the department, but that she would be happier being with him.
The hearing was continued for a contested hearing and to allow A.S. to be present.
Addendum Report September 30, 2015
The addendum report filed September 30, 2015, for the contested disposition hearing stated A.S. had participated in a psychotropic medication evaluation. Although she was taking medication, she continued to display self-harming behaviors, resulting in placement interruption. Such behaviors included going AWOL, cutting, assault, aggression, destruction of property, and wanting to harm others. She had been arrested three times since being detained. She snorted medication which was not prescribed to her, and which resulted in having to be taken to the emergency room.Due to her behavior, she was ordered to complete an evaluation for a Level 14 group home.
Father continued to request placement of A.S. When a social worker asked to come out to assess his home for placement, father told the worker someone had already done so and he would rather meet at the department.When asked what services he thought he needed and what his plan was for A.S., father said those issues had already been documented and he had provided that information to his attorney.Father, when told the department would recommend he participate in a mental health evaluation, said that such an evaluation was not necessary as he had done his own research. He also said that, if A.S. was released to him, he would not allow a monthly check of the home to ensure A.S.’s safety.Father did express a desire to attend A.S.’s therapy sessions to show her that he was there for her.
The department reported that father was uncooperative and that it would be detrimental to place A.S. in father’s care if he did not have a concrete plan for her.The social worker believed A.S. needed to stabilize her behavior in an environment where help was available to her.The department recommended father be ordered to participate in a parenting class and a mental health assessment and recommended treatment.
Father consistently visited A.S. once a week for an hour. The supervising visitation staff reported father was appropriate with A.S. and often provided her with positive advice.
Contested Disposition Hearing December 3, 2015
At the contested dispositional hearing on December 3, 2015, father’s counsel said father was withdrawing his opposition to the department’s recommendation and was ready to submit on the report.Father did, however, wish to be part of A.S.’s therapy.
The department recommended both mother and father be given services, includingparenting classes and mental health evaluations.Father objected to a mental health evaluation for himself.County Counsel explained that the evaluation would, in part, “address how the two can interconnect with regard to conjoint [therapy].”He also explained, “any effort to identify issues that need to be addressed may be … facilitated by the parents going through the evaluation … [to] identify issues that can assist [in] stabilizing the minor .…”
The juvenile court acknowledged father had “a calming influence” on A.S.The juvenile court found clear and convincing evidence that continuance in mother’s home was contrary to A.S.’s welfare and declared her a dependent of the court.A.S. was ordered removed from mother’s care, and reunification services were ordered for both mother and father, including undergoing a mental health assessment and recommended treatment.
Notice of Appeal January 16, 2016
On January 21, 2016, father filed a notice of appeal from the December 3, 2015, orders.
DISCUSSION
Court’s Disposition Orders
Father contends that the requirement that he participate in a mental health evaluation and recommended treatment was an abuse of the juvenile court’s discretion. He claims this is especially so because he was not the offending parent under the petition, and that it was mother’s actions and history of mental health problems which led to the filing of the petition.We disagree.
Pursuant to section 362, subdivision (d),
“The juvenile court may direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out [the provisions of] this section .…The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court’s finding that the child is a person described by Section 300.”
A disposition order may reach both parents, including a nonoffending parent, but must be reasonable and designed to eliminate the conditions that led to the juvenile court’s valid jurisdictional findings. (In re D.M. (2015) 242 Cal.App.4th 634, 639.)
“The juvenile court has broad discretion to determine what would best serve and protect the child’s interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)Moreover, the problem that the juvenile court seeks to address need not be described in the sustained section 300 petition. (See In re Christopher H.(1996) 50 Cal.App.4th 1001, 1006–1008 (Christopher H.); In re I.A. (2011) 201 Cal.App.4th 1484, 1492 [“A jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent, once dependency jurisdiction has been established”].)
We find no abuse of discretion in requiring father to undergo a mental health evaluation and recommended treatment. In recommending that father participate in a mental health evaluation and recommended treatment, County Counsel explained:
“[T]he reason for the mental health evaluation, it is an evaluation. [A.S.] is totally unstable really and she got that way somehow. And any effort to identify issues that need to be addressed may be—may be facilitated by the parents going through the evaluation. It may not lead to anything, but if it will identify issues that can assist stabilizing the minor, then let’s do it. I mean, there’s no harm in doing that. Is there?”
The juvenile court agreed.
The evidence before the juvenile court was that father completed inpatient substance abuse and after-care treatment in 2000. He was then in a brief relationship with mother, but ended the relationship when A.S. was born in 2001 because mother did not want to change her lifestyle. Father did not visit A.S. until 2003 when father was given full custody while mother was in jail. A.S. was with father until 2008 when allegations of physical abuse were made against father and A.S. was returned to mother. While father was allowed visitation, he did so only for a while. Father did not have contact with A.S. again until 2012, when she was removed from mother. Father acknowledged that reunification services as to him were terminated during that dependency.
By his own admission, father was not present for large stretches of A.S.’s life. He had a history of substance abuse warranting treatment andA.S. was removed from his care at one point. He had previously had reunification services terminated. A.S. was not stable and the reasons were still being assessed. It is possible, as argued by the department, that father’s absence from A.S.’s life, the physical abuse allegations against him, his history of substance abuse and his inability or unwillingness to complete reunification services are part of the underlying context of A.S.’s problems. Father’s mental or emotional state could be a factor in this history and, therefore, a factor now in any reunification plan.
Father relies on Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195 (Laurie S.), as an example of a court-ordered psychological examination which was held to be improper. But Laurie S. is clearly distinguishable as it dealt with an order issued before the juvenile court adjudicated the dependency petition and determined whether or not it had jurisdiction. The psychological examination in Laurie S. was used as a means of acquiring information upon which to determine whether or not the child was described by section 300. (Laurie S., at pp. 199–200.) Here, the juvenile court ordered father to participate in a mental health evaluation and recommended treatment only after determining it had jurisdiction and after making the dispositional determination that A.S. should not reside with either mother or father.
A mental health evaluation could be useful in determining whether father could effectively assume custody of A.S., who had severe mental health and behavioral issues. If mental health issues exists as to father as well, it would pose a potential risk of interfering with his ability to have A.S. placed with him and to benefit from the reunification services offered.
After a finding that a child is at risk from parental conduct, a parent’s privacy and liberty interests yield to the demonstrated need to protect the child. (Laurie S., supra, 26 Cal.App.4th at pp. 202–203 [psychological evaluations are frequently used in dependency cases as an “‘information gathering tool’”].) A parent may be ordered to undergo an evaluation to determine whether the parent is mentally disabled and whether reunification services are likely to prevent abuse or neglect. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 560, abrogated on other grounds in In re Tabitha W. (2006) 143 Cal.App.4th 811, 816–817.) Thus, “when the court is aware of other deficiencies that impede the parent’s ability to reunify with his child, the court may address them in the reunification plan.” (Christopher H., supra, 50 Cal.App.4that p. 1008.)
The juvenile court’s order that father undergo a mental health evaluation and recommended treatment was appropriate and not an abuse of discretion.
DISPOSITION
The dispositional order pertaining to the Welfare and Institutions Code section 300 petition is affirmed.


_____________________
HILL, P.J.
WE CONCUR:


_____________________
GOMES, J.


_____________________
FRANSON, J.



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† Retired Judge of the Superior Court of Fresno County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] In this opinion, certain persons are identified by abbreviated names and/or by status in accordance with our Supreme Court’s policy regarding protective nondisclosure. No disrespect is intended.
[2] The child’s mother is not a party to this appeal.
[3] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
[4] Section 361.5, subdivision (b)(10) provides that reunification services need not be provided if reunification services were previously terminated as to a sibling or half sibling of the child at issue, and the parent has not made efforts to treat the problem that led to the removal of the sibling or half sibling.