Opinion
D042057
7-23-2003
DEBBRA P., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
Debbra P. (the mother) seeks review of juvenile court orders denying her reunification services under Welfare and Institutions Code section 361.5, subdivision (b) (3) and (10) (all statutory references are to the Welfare and Institutions Code) and setting a section 366.26 hearing. She contends the court failed to find her daughter, Felicia P., was in substantial danger in her care and failed to consider her reasonable efforts and whether it would be in Felicias best interests to offer services. She also argues the court erred in denying services and there was insufficient evidence to find the allegations of the petition true based on the information in the request for judicial notice. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On February 28, 2003, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of newborn Felicia under section 300, subdivisions (b) and (j), alleging she was at risk in her parents care because they are mentally ill, the father has borderline intellectual functioning, the mother is mentally retarded, and in 2000 Felicias sibling suffered injuries that would have occurred only as a result of the parents unreasonable acts or omissions. The court detained Felicia and ordered supervised visitation and psychological evaluations for the parents.
Both parents have histories of significant mental illness and of living on the streets and in motels and shelters. They have three older daughters. Two, Trista and Sophia, are in guardianship with the maternal grandmother. In 2000, when the parents were caring for Trista and Sophia at the grandmothers home, Sophia suffered injuries "consistent with the result of attempted suffocation." The parents denied any abuse and said the mother was having a petit mal seizure at the time. After the third child, Jennifer, was born in February 2001, the Agency petitioned under section 300, subdivision (j), alleging she was at risk because Sophia was injured while in the parents care. The court found the allegations of the petition true and ordered services for the parents. At the six-month hearing it terminated services and set a section 366.26 hearing at which it terminated the parents rights to Jennifer.
A psychological evaluation for the mother conducted in May 2001 showed she is mildly mentally retarded and has a seizure disorder. The psychologist opined the mother is unpredictable and aggressive and parenting classes would not be of much help to her because her problems are so severe.
Here, for the jurisdictional/dispositional hearing, the social worker reported neither parent had participated in therapy as recommended in their previous psychological evaluations. The parents had not changed their lives significantly after the dependency cases of the other children and had not had a stable living arrangement for the past four years. The social worker opined they are not capable of understanding how to safely care for their children and it would be detrimental to Felicia to try to reunify her with them.
On the Agencys motion, the court took judicial notice of the files in Jennifers case. On March 31, 2003, the mother underwent a second psychological evaluation. The psychologist opined she suffers from significant intellectual deficits and a neurological and medical condition that pose a significant risk to her ability to parent a child safely. He did not recommend reunification services.
At the jurisdictional/dispositional hearing, it was stipulated that if the mother were to testify she would say she loves Felicia and is capable of caring for her, she would be able to provide adequate housing, is in job training and is willing to participate in therapy and other services. The father would say he loves Felicia, believes he can care for her, would participate in services, and has housing available if Felicia is placed with the family.
The court found the allegations of the petition true. It found reunification services should not be offered under section 361.5, subdivision (b)(3) and (10) and set a hearing under section 366.26.
The mother petitions for review of the courts order. ( § 366.26, subd. (l) and Cal. Rules of Court, rule 39.1B.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
I
The mother contends the court erred in not making an express finding Felicia would be in substantial danger if returned to the parents care, as required by section 361, subdivision (c)(1), and it failed to consider her reasonable efforts and whether it would be in Felicias best interests to offer services. These contentions are unfounded.
A reviewing court must uphold a juvenile courts findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal. App. 3d 1031, 1036-1037, 177 Cal. Rptr. 783.) "We must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also . . . view the record in the light most favorable to the orders of the juvenile court. " (In re Luwannna S. (1973) 31 Cal. App. 3d 112, 114, 107 Cal. Rptr. 62, quoting In re Biggs (1971) 17 Cal. App. 3d 337, 340, 94 Cal. Rptr. 519.) The appellant bears the burden to show the evidence is insufficient to support the courts findings. (In re Geoffrey G. (1979) 98 Cal. App. 3d 412, 420, 159 Cal. Rptr. 460.)
Before a child may be removed from his or her parent, the court must find by clear and convincing evidence the child would be at substantial risk of harm if returned home and there are no reasonable means to protect the child short of removal. ( § 361, subd. (c)(1).) The child need not have been actually harmed before removal. The focus is on averting harm. (In re Jamie M. (1982) 134 Cal. App. 3d 530, 536, 184 Cal. Rptr. 778.)
At the hearing the court stated it accepted the recommendations in the jurisdictional/dispositional report of March 17, 2002, and it was also basing the dispositional findings on the psychological evaluations in an addendum and on the parents past history as contained in the sibling files. This evidence showed the parents were not capable of safely caring for Felicia and would not benefit from reunification services. It detailed the parents failures to reunify with Felicias siblings, their mental health problems and lack of participation in any therapy and the opinions of the social worker and psychologist that they did not recognize or accept their problems and could not benefit from services. It showed Felicia would be in substantial danger in the parents care. The record does not support the mothers contention that the court did not consider her efforts and Felicias best interests. The mothers stipulated testimony that she had had prenatal care and had delivered Felicia without problems, she planned to start a culinary class, was willing to participate in therapy and would do whatever was necessary to reunify does not support a claim that she would benefit from services or that she had made reasonable efforts to be able to parent Felicia safely. Substantial evidence supports the courts orders and findings.
II
The mother argues the court erred in denying services under section 361.5, subdivision (b)(3) and (10). Subdivision (b)(3) does not appear to apply to the mothers case. However, substantial evidence supports a denial of services under subdivision (b)(10).
Section 361.5, subdivision (b)(10) provides reunification services need not be provided when the court finds by clear and convincing evidence:
"That the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian."
The social workers report and addendum, the sibling files and the psychological evaluations describe the parents failures to reunify with Felicias siblings and failures to address their significant mental health problems, as well as their chronic homelessness and inability to learn to parent their children safely. This evidence constitutes substantial evidence to support a denial of services under section 361.5, subdivision (b)(10).
III
Alternately, the mother contends the evidence was insufficient for the court to find the allegations of the petition true. We recognize the issue of jurisdictional findings may be considered on an appeal from a dispositional order. However, in the interests of judicial economy and timeliness we treat it here.
Substantial evidence supports a true finding on the allegations that Felicia was at risk in her parents care because of their mental illnesses, the fathers borderline intellectual functioning, the mothers mental retardation, and the fact that Sophias injuries could only have occurred as a result of the parents unreasonable acts or omissions. The record does not indicate the court based its findings on the material in the request for judicial notice alone. The fact that the court stated it would receive the jurisdictional and dispositional report "on the issue of disposition" does not mean the report was not also received on the jurisdictional issue. After giving counsel the opportunity to state their positions on the reports and cross-examine the social worker who prepared them and before making the jurisdictional finding, the court stated, "I will admit both of those reports. Also take judicial notice of the sibling files." The court indicated only that it would not consider the psychological evaluations in making the jurisdictional findings. The record indicates it considered the reports and sibling files in finding that Felicia came within the jurisdiction of the juvenile court.
DISPOSITION
The petition is denied.
WE CONCUR: McDONALD, Acting P. J., OROURKE, J.