In re Barbara B.

Filed 8/22/08 In re Barbara B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Robert Anspach, Judge.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Barbara B., appeals from the order of the juvenile court on December 12, 2007 at the conclusion of a recommitment hearing, finding her mentally retarded pursuant to Welfare and Institutions Code section 6500 and committing her to a facility in Florida.^[1] Appellant contends the juvenile court erred in committing her without finding that her mental retardation caused her to have serious difficulty in controlling dangerous behavior as required by People v. Bailie (2006) 144 Cal.App.4th 841, 847-850 (Bailie). Respondent argues the court applied the correct legal standard and the evidence shows that appellant had serious difficulty in controlling her dangerous behavior due to her mental retardation. Because the trial court applied the correct legal standard in recommitting appellant, we will affirm the judgment.

PROCEEDINGS

On September 28, 2006, the prosecutor filed a petition pursuant to section 602 alleging that appellant, who was then 12 years old, had committed arson to an inhabited structure (Pen. Code,  451, subd. (b)) and arson to property (Pen. Code,  451, subd. (d)). At the detention hearing on October 12, 2006, the juvenile court appointed the Kern Regional Center to perform an examination of appellant under section 6550 to determine her competency to continue proceedings under Penal Code section 1368. Proceedings on the section 602 petition were suspended.

The Kern Regional Center submitted a report that was filed on November 9, 2006, which included the evaluation of a psychologist and recommendation of the court liaison that appellant came within the provisions of sections 6550 and 6500 and was not competent to stand trial. The Kern County Probation Department filed a memorandum recommending the court find that appellant came within the provisions of sections 6550 and 6500.

At the section 6550 hearing held on November 14, 2006, the court found appellant was incompetent to stand trial and ordered her to participate in the services offered by the Kern Regional Center. The Kern Regional Center filed a petition on November 22, 2006, to have appellant committed under section 6500, et seq.

The court conducted the section 6500 hearing on December 20, 2006, and granted the petition. The court found appellant was a mentally retarded person who is a danger to self and/or others as those terms are defined by [s]ections 6500-6512. The court proceeded to commit appellant to a facility in Florida. On December 17, 2007, this court filed an opinion finding the juvenile court applied the wrong legal standard in committing appellant and that the error was not harmless.

On October 24, 2007, the prosecutor filed a new petition pursuant to section 6500.^[2] On December 12, 2007, the juvenile court conducted a recommitment hearing for appellant under the renewed petition.  At the conclusion of the hearing, the court found appellant is a mentally retarded person as defined by the Code and has a mental deficiency, disorder and abnormality causing her to have serious difficulties controlling her dangerous behavior. The court found appellants least restrictive placement was in the facility in Florida. The court further found that appellant is mentally retarded and is a danger to herself and others.

FACTS

Psychological Evaluations From Initial Section 6500 Hearing

Dr. Allison Little prepared a report for the section 6550 hearing that was resubmitted for the section 6500 hearing. Referring to a report from the fire department, Dr. Little noted that on August 20, 2006, witnesses saw appellant standing near an area where a structural fire was started. Appellant was hanging her clothing over a fence to dry. One witness saw appellant behaving in a manner suggesting that she started the fire. Based on admissions by appellant, the fire department concluded appellant draped her clothing over a fence near an apartment and ignited the clothing with a match. Appellant was diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) and had been prescribed four different medications. Only one worked according to her mother. Appellant was attending seventh grade as a special education student. Appellant had no prior criminal history. Appellant demonstrated articulation deficits and did not remember recent psychiatric hospitalization.

The Wechsler Abbreviated Scale of Intelligence showed appellants Full Scale I.Q. score at less than 55, falling in the .1st percentile, in the range of Mild Mental Retardation. Appellants reading ability level was pre-kindergarten, her spelling ability was kindergarten, and her arithmetic was first grade. Appellants Vineland Adaptive Behavior Scales test was used to assess her social competence. Appellants communication score was four years, her daily living skills were six years two months, her socialization was three years three months, and her adaptive behavior composite was four years five months.

Appellants Competence Assessment for Standing Trial for Defendants with Mental Retardation came back with a total score of four. Appellant did not have the ability to aid defense counsel and did not have an understanding of the events surrounding the allegations against her. From this test, Dr. Little concluded appellant was not competent to stand trial.

Dr. Little noted appellant was mentally retarded with intellectual functioning in the lower extreme range, although she later described appellant as suffering only mild mental retardation. Appellant also suffers from ADHD, learning disabilities, and family discord. Dr. Little concluded appellant was not competent to stand trial pursuant to Penal Code section 1368.

Dr. Michael Musacco evaluated appellant to determine whether or not she is a Mentally Retarded Person who represents a risk of harm to herself and/or others. Dr. Musacco noted appellant was previously diagnosed with ADHD and mild mental retardation. Dr. Musacco found appellant suffers from mild mental retardation, has a history of impulse control, and has engaged in behaviors that place herself and others at risk of harm. Dr. Musacco had the report of the Cascade School District indicating appellant had a verbal I.Q. score of 60 and a performance I.Q. score of 62 for a full I.Q. score of 57.

Dr. Musacco noted that a report from a family therapist indicated appellant had a history of tantrums and aggressive behavior. Appellant told Dr. Musacco that she had experimented with marijuana and alcohol. Dr. Musacco interviewed appellant during a period of hospitalization in a mental facility. He noted that compared to a prior episode, appellant was cooperative, pleasant, and well behaved. This was evidence appellant had improved. At the time of the evaluation, appellant was not taking any medication. Attempts were being made for permission for appellant to take Straterra.

Dr. Musacco noted appellants grooming and hygiene were fair. Appellant was impatient during the course of the evaluation. Appellants speech was marked by a mild to moderate articulation disorder. Appellant described her mood as sad, stated she was usually happy, and denied being generally depressed. Appellant acknowledged a history of suicidal thoughts. Appellant stated she was innocent of the current charges pending against her in the section 602 proceeding.

Dr. Musacco diagnosed appellant as having ADHD, Combined Type Phonological Disorder (Mild), a rule out diagnosis of mood disorder, and mild mental retardation. Dr. Musacco noted that appellant demonstrated possible symptoms of a mood disorder, which exacerbates her risk of harm to herself and others. Dr. Musacco found appellant was removed from the hospital against medical advice earlier in the month. In light of this data, Dr. Musacco found that appellant remains at risk of harm to herself and others. Dr. Musacco recommended that appellant be placed in a dual diagnosis facility in Florida.

Psychological Evaluations From Section 6500 Rehearing

Bret Harney, forensic court liaison, filed a report on December 5, 2007, setting forth the history of appellants case. Harney noted appellant was placed in the Florida facility on December 21, 2006. Appellant was eligible for services from the Kern Regional Center based on a dual diagnosis of ADHD, oppositional defiant disorder, disruptive behavior disorder, coupled with mild mental retardation.

Harney explained that on February 7, 2007, appellant appeared in juvenile court regarding her progress on being restored to competency. At the conclusion of that hearing, appellant was found to be incompetent to stand trial. Harney explained that appellant was evaluated by Dr. Emilio Roig, a psychiatrist, on November 30, 2007 and by Dr. Joel Shuy, a psychologist, on October 26, 2007.^[3] At the beginning of the rehearing on December 12, 2007, the juvenile court stated it had reviewed the evaluations of the doctors.^[4] Counsel for both parties submitted the matter on the two reports.

Dr. Roigs report and evaluation recounted the appellants medical and legal history. Dr. Roig stated appellant was taking Strattera to help with her symptoms of distractibility and her short attention span. Dr. Roig reported that in the Florida facility appellant displayed oppositional behaviors, property destruction, social skills defects, problems with mood stability, educational problems, and mental retardation in the mild range.

Short and long range goals were created for appellants treatment plan to help her with her dangerous and disruptive behaviors as well as her sexual behaviors, which were tracked daily. Appellants dose of Strattera was increased from 25 mg. per day to 60 mg. per day. Appellant did not require locked seclusion but on 10 occasions was placed on supine restraints for behaviors that were out of control or aggressive. During the last plan of care review, appellant had increased her aggressive, self injurious, and property destruction behaviors. Since the increase in Strattera, appellant was making progress in school.

Dr. Roig found appellant to be functioning in the borderline to mildly mentally retarded range. Dr. Roig noted appellant was functioning with a full-scale IQ of less than 55. Appellant continues to display limited insight, poor peer relations, and cognitive deficits. Appellant was in the least restrictive environment for protection of self and others due to her history of aggression, tantrums, poor impulse control, and alleged fire setting of an inhabited dwelling. These behaviors indicated to Dr. Roig that appellant could not function properly in the community at that time. Although appellant had made some progress in reducing many of her behaviors, most recently there had been a slight increase in the frequency of these behaviors.

Dr. Shuy prepared a report and evaluation for the section 6500 hearing. Dr. Shuy reviewed appellants file, reports, and medical records from the earlier legal proceedings. Dr. Shuy summarized this information before setting forth his own evaluation of appellant. Dr. Shuy described appellant as a female who appears her stated age of nearly 15. According to Dr. Shuy, appellant did not understand the purpose of his examination of her. Appellant admitted she has poor impulse control and is easily frustrated. Dr. Shuy observed that appellant was clearly limited in her ability to focus her attention.

Dr. Shuy stated appellant understood she was charged with arson and understands what arson means, but believed her cousin committed the offense. Appellant could not clearly define the meaning of guilt. Appellant told Dr. Shuy she had been to court twice but had little recollection of what happened. Appellant could not grasp the roles of the attorneys and the judge even after several attempts to describe them to her. Appellant confused the roles of different attorneys. Appellant did not understand the concept of attorney-client privilege.

Dr. Shuy believed appellant would have difficulty testifying in a relevant manner or assisting her attorney. Appellants attention, thought processes, and impulse control are insufficient to aid in her own defense. Appellant was likely to be restless in the courtroom environment if not kept stimulated. In a courtroom, appellant would act much like a child four to six years of age.

Dr. Shuy found appellant a developmentally immature adolescent who does not have appreciation or understanding of the legal process. Appellant has difficulty managing her behavior and persistently requires structure and redirection. In Dr. Shuys clinical opinion, appellant was not competent to stand trial. Appellant has significant cognitive, behavioral, and emotional deficits in functioning that are consistent with a diagnosis of Pervasive Developmental Disorder NOS (not otherwise specified). Appellant further exhibits mild mental retardation.

Dr. Shuy concluded that it was unlikely appellant would achieve an acceptable level of adjudicative competence in the future due to her intellectual and developmental deficits. Although appellants psychiatric condition may improve, this improvement would not likely change her other deficits. Appellant made some minor strides in her behavior and academically at the Florida facility. Given appellants diagnosis and history, Dr. Shuy found appellant to be a potential danger to herself and others, particularly if her condition and needs were not closely monitored by trained professionals.

Dr. Shuy thought a secure group-home setting would be the next logical step in appellants care and would represent a balance between her own and public safety with placement in the least restrictive environment. Because appellant has a history of non-compliance, impulsivity, and one elopement, Dr. Shuy recommended the court consider a setting that is close to appellants home. Dr. Shuy believed appellant could be stabilized for a trip back to California in several months.

DISCUSSION

Appellant contends that the juvenile court committed her only upon a showing that she was a mentally retarded person in danger to herself or others. Appellant challenges the constitutionality of section 6500. She argues that the juvenile court failed to follow the proper legal standard. Appellant relies on Bailie for the proposition that section 6500 must be construed as including an additional requirement of proof that a persons mental retardation causes him or her to have serious difficulty in controlling dangerous behavior.^[5] (Bailie, supra, 144 Cal.App.4th at pp. 847-850.) In our first opinion, we agreed with appellant and reversed the juvenile courts finding.^[6] Unlike the initial section 6500 hearing, however, the juvenile court applied the proper legal standard for committing appellant at the section 6500 rehearing.

Appellant notes that in our first opinion we found there was no showing that appellants dangerous behavior was caused by her mental illness. We found the absence of a factual showing was exacerbated by the fact that the psychologists Little and Musacco, who originally examined appellant, applied the wrong legal standard in their evaluations, as well as the fact that appellant also suffers from mental health problems.

Doctors Little and Musacco did establish that appellant suffers from mental retardation. They failed, however, at the original hearing, to show a causal link between appellants dangerous conduct and her mental retardation. In contrast to the original section 6500 hearing, the juvenile court had the report and findings of Dr. Roig and Dr. Shuy to consider. Dr. Roig found appellant was mentally retarded and suffered from behavioral and cognitive deficits that indicated appellant was unable to properly function in the community. Appellant also had a history of poor impulse control, property destruction, and aggressive behavior toward others. Dr. Roig found appellant to be functioning in the borderline to mildly mentally retarded range.

Dr. Roig noted appellant was functioning with a full-scale IQ of less than 55. Appellant continues to display poor insight, poor peer relations, and cognitive deficits. Appellant was in the least restrictive environment for protection of self and others due to her history of aggression, tantrums, poor impulse control, alleged fire setting of an inhabited dwelling. These behaviors indicated to Dr. Roig that appellant could not function properly in the community at that time.

Dr. Shuy established that appellant did not believe she caused a fire but thought it was caused by her cousin. According to Dr. Shuy, appellant did not understand the purpose of his examination of her, admitted she has poor impulse control, and is easily frustrated. Dr. Shuy observed that appellant was clearly limited in her ability to focus her attention.

Dr. Shuy found appellant has difficulty managing her behavior and persistently requires structure and redirection. In Dr. Shuys clinical opinion, appellant has significant cognitive, behavioral, and emotional deficits in functioning that are consistent with a diagnosis of Pervasive Developmental Disorder NOS.^[7]

Dr. Shuy determined that it was unlikely appellant would achieve an acceptable level of adjudicative competence in the future due to her intellectual and developmental deficits. Dr. Shuy thought appellants psychiatric condition may improve, but noted this improvement would not likely change her other deficits. Appellant had poor impulsivity control which led to an elopement. Given appellants diagnosis and history, Dr. Shuy concluded appellant to be a potential danger to herself and others, particularly if her condition and needs were not closely monitored by trained professionals.

Dr. Roig and Dr. Shuy directly observed appellants significant cognitive, behavioral, and emotional deficits which in turn demonstrate a direct causal link between appellants mental retardation and her dangerous conduct. Dr. Shuy reached his conclusion assuming that in the future appellants mental illness and emotional symptoms would improve. Dr. Roig opined that appellant was in the least restrictive environment for the protection of herself and others. Dr. Shuy did not believe appellant could function in the community without direct supervision of trained professionals.

The juvenile courts findings that appellant has a mental deficiency, disorder and abnormality causing her to have serious difficulties controlling her dangerous behavior, and that appellant is a danger to herself and others, are supported by the record. The juvenile court was permitted to draw reasonable inferences from the evaluations of the doctors concerning the link between appellants mental retardation and her present inability to control her behavior. In doing so, the juvenile court employed the correct legal standard for committing appellant pursuant to section 6500 as required by Bailie. We reject appellants contention that the juvenile courts finding was merely pro forma.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., Cornell, J.

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

^[2] In relevant part, section 6500 provides:

Any order of commitment made pursuant to this article shall expire automatically one year after the order of commitment is made. This section shall not be construed to prohibit any party enumerated in Section 6502 from filing subsequent petitions for additional periods of commitment.

^[3] The record in the instant appeal does not include the evaluation of Dr. Roig. Dr. Roigs evaluation is part of the record at pages 103 to 105 of the clerks transcript in case No. F054955, a third appeal in the instant action from proceedings subsequent to this commitment hearing. Because Dr. Roigs evaluation was considered by the juvenile court during the section 6500 rehearing without objection by either party, we will take judicial notice of it on our own motion. (Evid. Code,   459, subd. (a)(1) & 452, subd. (d)(1); McMahanv. City and County of San Francisco (2005) 127 Cal.App.4th 1368, 1373, fn. 2.)

^[4] The reporters transcript of the section 6500 rehearing has Harney saying on the record that there were evaluations from Dr. Shy and Dr. Roark. Because Harney correctly spelled the names of both doctors in his report, the errors in the names of both doctors appear to be misspellings by the court reporter.

^[5] Appellant contends the section 6500 petition failed to allege that her civil commitment was based on evidence she has serious difficulty in controlling her behavior as a result of her mental illness. The petition stated that appellant was a mentally retarded person who is dangerous to herself and others. It further stated that her dangerous behaviors required professional intervention. The petition further stated appellant was physically aggressive toward staff, threatened harm toward herself and others, destroyed property, and had made attempts to elope. The petition stated appellant suffers from a mental disorder and/or mental disability.

We agree with respondent that appellant never demurred to the adequacy of the petition. Rules for criminal cases apply to juvenile proceedings unless otherwise specified. Penal Code section 1012 provides that the failure to demur to a defective pleading constitutes a waiver of any issue concerning an inadequacy with the pleading. (In re James C. (2002) 104 Cal.App.4th 470, 48-481; In re Shelley J. (1998) 68 Cal.App.4th 322, 328.) Appellant failed to object to the pleading.

The fact that appellant has serious difficulty in controlling her behavior as a result of her mental illness can be inferred from the entire petition, which also includes factual allegations of appellants past behaviors and conduct. Thus, appellants argument that trial counsel was ineffective for failing to demur to the petition is also rejected because she cannot demonstrate prejudice for counsels failure to demur. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) Prejudice cannot be demonstrated here because the trial court used the correct legal standard in committing appellant and an amended petition would not have changed the outcome of the proceeding. Counsel is not required to make futile or frivolous motions. (People v. Ramirez (2003) 109 Cal.App.4th 992, 1002.)

^[6] In our first opinion, we noted that Bailie concluded the Legislature would prefer to construe the section 6500 scheme as including a requirement that the committee have serious difficulty in controlling his or her dangerous behavior. (Bailie, supra, 144 Cal.App.4th at p. 850.)

^[7] Dr. Shuy also found appellant was not competent to stand trial. Appellant could not clearly define the meaning of guilt. Appellant told Dr. Shuy she had been to court twice but had little recollection of what happened. Appellant could not grasp the roles of attorneys and the judge even after several attempts to describe them to her.