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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Jon E. Stuebbe, Judge.

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

No appearance for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, Barbara B., appeals from the order of the juvenile court on March 5, 2008, finding her to fall within the provisions of Welfare and Institutions Code section 6500 as a result of mental retardation.^[1] The juvenile court ordered appellants commitment to a local community care facility.

Appellants appointed appellate counsel has filed an opening brief, which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised she could file her own brief with this court. By letter on June 17, 2008, we invited appellant to submit additional briefing. This court received a supplemental brief from appellants mother on July 18, 2008 that outlines the procedural history of appellants case and requests appellants commitment be reversed because the arson charges were dismissed in March 2008.^[2]

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. 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.

Appellant appealed from the juvenile courts finding in case No. F054530, a related action in which we affirm the juvenile courts recommitment of appellant pursuant to section 6500. In that action, the juvenile ordered her commitment to a facility in Florida on December 12, 2007.

On January 23, 2008, Judge Anspach denied a motion by appellants mother for his disqualification. On January 25, 2008, Judge Stuebbe ordered appellant be transported from Florida to a facility in Bakersfield and that appellant be reevaluated.

On March 5, 2008, the juvenile court found appellant to be a mentally retarded person in danger to herself and others and that her mental deficiency caused her to have serious difficulty controlling her dangerous behavior. The court ordered appellants commitment to a local childrens care facility.

FACTS

Dr. Michael Musacco prepared an evaluation setting forth the history of appellants case. Dr. Musacco found appellant suffers from deficits in her intelligence and adaptive functioning, which contribute to impaired coping skills, and aggressive and impulsive behaviors. Appellants functioning had improved to a significant degree. Appellant remains a mentally retarded person who, as a result of her mental retardation, is a danger to herself and others. Because of the improvement in her condition, Dr. Musacco recommended appellants placement in a local group home.

During Dr. Musaccos interview with appellant, she acknowledged she often acts out with verbal aggression or destructive behavior rather than to use her coping skills. Appellant acknowledged substantial impairment in her mood and impulse control. Appellant told Dr. Musacco she had a family gift which enabled her to foretell the future through dreams. Dr. Musacco, in his current evaluation, did not detect any psychosis in appellant.

Appellant still denied setting the fire that led to the instant legal proceedings. Appellants fund of general information is impoverished, which is consistent with her intellectual functioning level. Appellant reported she has problems with self-injurious behaviors. A test of appellants I.Q. resulted in a nonverbal score of 62, falling below the first percentile. Dr. Musacco found appellant suffers from mental retardation.

Dr. Musacco further diagnosed appellant with Attention-Deficit/Hyperactivity Disorder, Combined Type. Appellant suffers from Mood Disorder, Not Otherwise Specified and has problems with anger and irritability. Dr. Musacco opined that appellants unstable emotional functioning is significantly associated with her Mental Retardation and Attention-Deficit/Hyperactivity Disorder. Dr. Musacco noted appellant had a history of fire setting behaviors. Dr. Musacco, who had read this courts opinion in the first appeal from appellants initial commitment, stated it remains his opinion that the appellant is a mentally retarded person whose mental retardation results in the risk of harm she poses to herself and others. Appellant suffers from conditions in addition to her mental retardation that also aggravate her risk of harm to others.

Dr. Musacco concluded appellants mental retardation contributes to deficits in her mental and emotional functioning. Appellant possesses deficits in her impulse control, judgment, insight, and intelligence that contribute to her history of acts of violence directed against herself and others, including acts of property destruction. Appellants mental retardation causes her to be at substantial risk of harm to herself and others. Dr. Musacco recommended appellant be committed to a community care facility to manage her risk of harm.

Dr. Allison Little filed an evaluation noting a clinical opinion that appellant is developmentally disabled and/or mentally retarded. This is a substantial factor in appellants serious difficulty in learning, reasoning, adapting, and controlling her dangerous behavior. Some of appellants maladaptive behaviors related to her mental retardation are disruptive behavior, self-injurious behavior, injury to others, damage to property, and breaking rules.

Dr. Little concluded appellant was at substantial risk of harm to others as a result, in part, of her intellectual deficiencies caused by mental retardation. Appellants overall intellectual and adaptive functioning substantially interfere with her social performance, ability to understand, impulse control, insight, and judgment. Appellants mental retardation will contribute to appellants risk of harm directed against others under section 6500. Because appellant demonstrated ability to improve her mood swings, Dr. Little recommended appellants placement in a community care facility.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] The brief by appellants mother does not set forth a legal or factual basis for this court to reverse the juvenile courts commitment order. The brief asserts that appellant received no due process with regard to the arson allegations. The mother asserts appellant is innocent of those allegations. Appellants commitment pursuant to section 6500, however, supersedes the arson allegation in the section 602 petition. Appellant has been afforded due process in the section 6500 proceedings.