In re Emily B.

Filed 11/20/07 In re Emily B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.

Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

M. Elizabeth Handy, under appointment by the Court of Appeal, for Minors.

1. Introduction^[1]

Three children are the subject of this appeal, Emily B., born in June 1992, Erin B., born in March 1994, and Megan R., born in May 2004. The children have different fathers, Scott B. and Michael R.

Mothers appeal challenges the orders of the dependency court, continuing the detention of Emily and Erin and maintaining the same visitation schedule with all three children. We treat the appeal in part as a petition for writ of mandate and deny it. To the extent any issue is appealable, we affirm the orders of the dependency court.

2. Factual and Procedural Background

In April 2006, the Riverside Department of Public Social Services (DPSS) filed an original dependency petition alleging parents failure to protect and support. ( 300, subds. (b) and (d).) Mother, Emily, and Erin had previously been the subject of a dependency case between October 2001 and December 2002. Mother and Michael R. both used methamphetamine and conducted verbal altercations in the presence of the children. Scott B. was living in New York.

The detention report included an interview with Emily in which she described her mother and Mike using drugs and quarrelling. She claimed her former stepfather (later identified as Craig N.) had done weird things to her when her mother attended a detoxification program. Erin was more reluctant to accuse her mother and Mike of wrongdoing. Mikes mother, Mrs. G., confirmed mother and Mike were using drugs. Mrs. G. wanted to assume custody of Megan. The maternal grandmother also confirmed mothers drug use and offered to care for Erin and Emily.

Mother had come to the DPSS office and admitted both she and Mike were using methamphetamine. She agreed Emily had been sexually abused by Craig N., the stepfather. She agreed to take a drug test. Mother had a long history of using drugs and leaving her children with the stepfather, who was afflicted with AIDS. Mother and the stepfather had engaged in domestic violence in front of the children.

At the detention hearing, the court ordered the children removed and placed with DPSS, which placed all three children with Megans paternal grandparents.

Subsequently, DPSS made contact with Scott B., who supported placement with the maternal grandmother for Emily and Erin. As of May 2006, both mother and Mike had entered treatment programs.

At the jurisdiction/disposition hearing, the court found the allegations under section 300, subdivision (b) to be true, continued the childrens removal, and ordered DPSS to provide reunification services and visitation to the parents. Mothers case plan required she complete a parenting program, undergo drug treatment and testing, and receive counseling.

Mother participated in a substance abuse program between May and October 2006 and had four negative and four positive drug tests. Her progress was questionable.

In the status review report submitted in November 2006, DPSS recommended Megan be placed with Mike in family maintenance status and that mother and Scott receive an additional six months of services. Mike was employed as a plumber and had completed his programs. Erin and Emily were in the seventh and eighth grades and receiving therapy because of their ongoing emotional problems. At their and mothers request, their placement had been changed from Mrs. G. to a foster home. Their father, Scott, had not made any progress on his case plan or had any visitation with his daughters.

Mother was unemployed and receiving financial assistance from her family. She had weekly visitation with all three girls. DPSS recommended psychological testing for mother. DPSS described her behavior as bizarre and inappropriate. Mother exhibited auditory hallucinations, distorted thinking, speaking in tangents, waxing and waning. She had filed lawsuits against the Bureau of Alcohol, Tobacco, and Firearms (ATF) and the FBI, accusing them of spying on her and tapping her telephone.

Mike wrote a letter opposing mother reunifying with Megan and expressing his concern about Emily and Erin. Mrs. G. also wrote a letter describing mothers troubling and peculiar behavior, including publicly exposing herself, erratic driving, disrupting Emily and Erins school, writing harassing letters, acting paranoid about airplanes, filing lawsuits, loss of memory, not cooperating in her dependency case, and keeping in touch with her former husband who may have molested Emily.

In her writings dated May 2006, mother claimed to be harassed and persecuted by the ATF and the FBI because she participated in Narcotics Anonymous. In June, mother was hospitalized under section 5150.^[2] Emily was fearful about mothers ongoing contact with the former stepfather.

At the status review hearing on November 13, 2006, minors counsel represented to the court that Emily and Erin were desperate to go back to mother and that they hated being in foster care where they were tortured by other girls. They preferred to be with their mother instead of their maternal grandmother in Florida.

Mother submitted a letter to the court in which she criticized DPSS and the foster care provided to Emily and Erin. She denied being delusional or having auditory hallucinations. She admitted she was suing the United States government.

The court ordered a psychological evaluation and that mothers Saturday weekly visitation with Emily and Erin continue.

In December 2006, DPSS recommended the court terminate unsupervised visitation for mother and impose supervised visitation until mother submitted to a psychological and medical evaluation. The county mental health department identified the following concerns: reports of bizarre, inappropriate behavior; auditory hallucinations, distorted thinking; lawsuits against ATF and the FBI accusing them of spying on her and bugging her phone; standing in the middle of a busy street, causing a 5150 hold; a history of chemical abuse; and ongoing contact with the man who molested her children. Additionally, mother leaves inappropriate messages displaying evidence of paranoia, visual & auditory hallucinations & aggression. It was reported that recently client drove thru the parking lot in a frenzy nearly running over people.

At the contested review hearing on January 8, 2007, mother testified she lived alone and had recently begun working at a convenience store. She asserted she had complied with the requirements of her case plan. When the court inquired about why she had not submitted to a psychological evaluation, she contended therapy was enough and she refused to have an evaluation. Minors counsel again represented Emily and Erin desperately wanted to return to their mother. The girls also testified.

The court ordered mother to have unsupervised all-day visitation with Emily and Erin on Sunday and visitation with all three girls together one weekday afternoon in a social services office.

On February 9, 2007, mother filed a notice of appeal of the foregoing orders.

Mother has filed two requests for judicial notice with this court. We deny the requests. (Evid. Code, 352 and 359; In re Zeth S. (2003) 31 Cal.4th 396, 405, 413.) But we acknowledge that mother briefly regained custody of Emily and Erin between March and May 2007. Ultimately, however, they were removed from her custody again.

3. Sufficiency of Evidence

Mother argues there was insufficient evidence to deny returning Emily and Erin to her on January 8, 2007, based on her refusal to have a psychological evaluation and the other evidence of her mental health. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.)

Respondent counters that mother failed to file a timely notice of appeal within 60 days after the hearing of November 13, 2006. (Cal. Rules of Court, rule 8.400(d); In re X.V. (2005) 132 Cal.App.4th 794, 800.) An appeal from the order of January 8, 2007, may not challenge the previous order of November 13, 2006, and the issues determined by the latter are res judicata. Nevertheless, we recognize there are overriding goals making it desirable to address mothers claims on the merits, and we will therefore exercise our discretion to treat her appeal as a petition for writ of mandate. [Citations.] (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1157.)

Mother particularly objects to the order requiring a psychological evaluation as a violation of her constitutional right to privacy. (U.S. Const., 14th Amend.; Calif.Const., art. I, 1 and 7.) In Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 201, the court recognized: Evaluations are generally ordered as part of a reunification plan after the child is declared a dependent. [Citation.] Frequently after a finding of jurisdiction a parent may be ordered to undergo an evaluation to determine if the parent is mentally disabled and if reunification services are likely to prevent continued abuse and neglect. [Citation.] Laurie S., supra, at pages 202-203, also concluded: [A]fter a finding the child is at risk, and assumption of jurisdiction over the child . . . a parents liberty and privacy interests [may] yield to the demonstrated need of child protection. At that stage, where the aim is to reunify parent and child, expert opinion on the cause and extent of mental illness may be required to ascertain which services will eliminate the conditions leading to dependency.

In the present case, although mother had made some progress toward reunification, DPSS questioned whether she had completed her case plan satisfactorily and there were concerns expressed about her conduct in group sessions and her mental health generally. For these reasons, DPSS recommended the court order a psychological evaluation in order to rule out any mental health issues that might preclude the Department from making reunification a possibility. Between October and December 2006, mother continued to demonstrate mental problems affecting her ability to reunify. For these reasons, it was wholly justified for DPSS to ask for and the court to order expert opinion on the cause and extent of mothers mental illness to ascertain which services would eliminate the conditions leading to dependency. (Laurie S. v. Superior Court, supra, 26 Cal.App.4th at p. 203.)

On the issue of sufficiency of evidence for continuing the removal of Erin and Emily, mother argues she had complied with her case plan and addressed the reasons for removal, and further, any evidence of mental problems predated her completion of treatment programs. Mother examines the record in minute chronological detail to show the problems leading to the removal were eliminated or significantly ameliorated by January 2007. On the other hand, respondent points to persuasive evidence in the record that mothers paranoia and delusions were ongoing. In fact, her main reason for objecting to being evaluated was that it might compromise her lawsuit seeking $22 million against the United States and arising out of her participation in Narcotics Anonymous.

Based on this record, we do not perceive mother has met her burden of demonstrating there is insufficient evidence to support the dependency courts order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) The dependency court could reasonably determine that returning Emily and Erin to mother would create a substantial risk of detriment to the childrens physical or emotional well-being. ( 366.21, subd. (e); In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 305, citing Cynthia D. v. Superior Court (1999) 5 Cal.4th 242, 249; In re Joseph B. (1996) 42 Cal.App.4th 890, 899; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) This case is not like Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1335-1339, 1345-1346, in which mild drug use was deemed insufficient evidence by itself and in view of other ameliorating factors, to demonstrate risk of detriment.

4. Other Errors

In related claims, mother argues the dependency court erred by not evaluating whether Emily and Erins foster home placement was detrimental and in finding mother had received reasonable reunification services. The factual record belies mothers fundamental premises supporting these contentions.

At the hearing on November 13, 2006, the court asked about alternative placements and ordered a psychological examination. The court ordered that Kelly N., who was suggested by mother, be evaluated immediately for placement. DPSS began the evaluation process but noted that Kelly N. was mothers former sister-in-law, related to Craig N., the molesting stepfather. At the hearing on January 8, 2007, the court acknowledged that Kelly N. lived in San Diego, meaning the girls would have to change schools and develop new friendships. Nevertheless, in accordance with the girls and mothers request, the court ordered placement with Kelly to be expedited. The record, therefore, reflects the court acknowledged the girls unhappiness with their foster home placement and took immediate action to have it changed. The court certainly did not ignore the girls foster home placement or their preference for a different placement even if the court did not return the girls to mothers custody.

Regarding the reasonableness of reunification services, mother asserted she felt there was a conflict with her social worker but the court assured her the court was making its decision based on its own assessment, not on the social workers report. The court also said it would consider evidence from mothers therapist about her mental health if it should be presented. Mother testified that she had received adequate and appropriate services and she had complied with her plan. Thus, the record reflects that mother agreed she had received reasonable services. (In re Misako R., supra, 2 Cal.App.4th at p. 547.) Nevertheless, the court had independent concerns about mothers mental health that had not been resolved. The issue was not whether mother had received reasonable services but whether she was still experiencing other emerging problems affecting her ability to reunify.

5. Disposition

Substantial evidence supports the dependency courts findings in not returning Emily and Erin to mothers custody in January 2007 and in maintaining placement and visitation as previously ordered until the assessment of the San Diego placement was completed. The court properly found DPSS had provided mother with reasonable services but she refused to submit to the court-ordered psychological evaluation.

As to a proposed change in visitation with Megan, mother has not adequately briefed this issue on appeal. (In re Joshua G. (2005) 129 Cal.App.4th 189, 198, fn. 7.) But the reasoning we have used throughout this opinion applies equally to Megan as to Emily and Erin.

We deny mothers petition for writ of mandate and affirm the orders of the dependency court.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/McKinster

Acting P. J.

s/King

J.

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

^[2] Section 5150 provides a person, who appears to be a threat to others or to himself/herself because of a mental disorder, may be taken into custody and held for up to 72 hours for treatment and evaluation.