Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 10JU015A, 10JU015B
HOCH, J.
Trinity County Health and Human Services (the Department) appeals from the juvenile court’s jurisdictional and dispositional orders. (Welf. & Inst. Code, §§ 360, subd. (d), 395; undesignated statutory references are to the Welfare and Institutions Code.) The Department contends there was sufficient evidence to sustain two of the allegations in the petition that were dismissed by the court. The Department also contends the juvenile court erred in ordering reunification services for the minors’ mother because such an order is contrary to law and the court failed to make the necessary findings to support such an order. We agree with the Department’s second contention and reverse the juvenile court’s order granting reunification services.
The minors, through their guardian ad litem, purported to “join” in the Department’s appeal but did not file a notice of appeal and, therefore, are not considered appellants in this matter.
BACKGROUND
In March 2010, the Department filed section 300 petitions on behalf of then five-year-old G.B. and then seven-year-old A.F.
As to both minors, the petitions alleged that the minors had suffered, or there was a substantial risk they would suffer, serious physical harm or illness, within the meaning of section 300, subdivision (b), as follows:
“b-1 On or about 3/23/2010 and dates prior thereto, the mother, [M.F.], failed to protect the children in that she allowed [E.C.], a known violent felon, to reside in the home, have access to the children, and engage in violent and dangerous behavior in the presence of the children.
“b-2 On or about 3/23/2010 and dates prior thereto, the mother, [M.F.], failed to protect the children in that she remained in a violent relationship with [E.C.] in which she was continually physically assaulted in the presence of the children.
“b-3 On or about 3/23/2010 and dates prior thereto, the mother, [M.F.], placed the children at serious risk of physical harm in that she smoked marijuana in the home, a small, confined space, with the children present on a regular basis.
“b-4 On or about 3/23/2010 and dates prior thereto, the mother, [M.F.], failed to provide the child with mental health and medical treatment.
“b-5 On or about 3/23/2010 and dates prior thereto, the mother, [M.F.], failed to provide the child with adequate clothing.
“b-6 On or about 3/23/2010 and dates prior thereto, the mother, [M.F.], failed to provide the child with adequate hygiene.
“b-7 The mother’s failure to provide for and protect the children as alleged in b-1 through b-6 is due, in part, to her substance abuse.”
As to minor G.B., the petition also alleged the minor was suffering, or was at a substantial risk of suffering, serious emotional damage, within the meaning of section 300, subdivision (c), as follows:
“c-1 The child, [G.B.] is at substantial risk of serious emotional damage as a result of the conduct of the mother as alleged in b-1 through b-6 as well as continual exposure to domestic violence in the home.”
As to minor A.F., the section 300, subdivision (c), allegation in the petition alleged as follows:
“c-1 The child, [A.F.], is suffering serious emotional damage as evidenced by anxiety, depression, and untoward aggressive behavior towards others, as a result of the conduct of the mother as alleged in b-1, b-2, as well as continual exposure to domestic violence in the home.”
The juvenile court found all of the allegations made pursuant to section 300, subdivision (b), were true but dismissed the allegations under b-1 and b-2 because it found the current risk abated in that mother had obtained a restraining order against E.C. The petitions were sustained on the remaining section 300, subdivision (b), allegations, as well as the section 300, subdivision (c), allegation with respect to minor A.F. only.
The written order with respect to minor G.B. appears to be in error, as the court did not modify the written order by striking b-1 and b-2 to conform to its oral findings.
In its dispositional report, the Department requested reunification services be bypassed pursuant to section 361.5, subdivisions (b)(2) [mental health condition], (b)(10) [termination of services for siblings], (b)(11) [termination of parental rights for siblings], and (b)(13) [failure to comply with previous drug treatment]. The Department submitted psychological reports from Drs. Ray Carlson and David McGee-Williams in support of bypassing services pursuant to section 361.5, subdivision (b)(2). It also submitted evidence that mother had failed to reunify with the minors’ half siblings and her parental rights to those half siblings had been terminated in May 2004. Mother had failed to participate in a court-ordered treatment plan, failed to complete a substance abuse out-patient program, failed to attend parenting classes, failed to keep the social worker advised of her whereabouts, and failed to make contact with the half siblings for 12 months. Although mother reported that she had stopped using methamphetamine, she continues to use marijuana five to seven times a day.
The juvenile court declared the minors dependent children of the court. The court also found mother fell within the provisions of section 361.5, subdivisions (b)(2), (10), (11), and (13), but that services would be provided anyway. The court explained as follows: “The psychological report does indicate that the odds are against the mother. On the other side of the coin is the fact that, you know, the law does say that reunification services can be denied under these circumstances, based upon the termination of parental rights to the other child six years ago, and that child was removed nine years ago. What mitigates that maybe, it could be argued, is that there has been a passage of time. Even though that’s contrary to the psychiatrist’s or psychologist’s report, history can –- will probably define the future in this case because of the number of years the mother has lived with the attitudes and the issues and the problems that she’s dealt with thus far. [¶] However, I think it’s appropriate that reunification services be offered. And they can be terminated in six months. They don’t have to go to a year or 18 months.”
DISCUSSION
I.
Jurisdiction
The Department contends there was sufficient evidence to sustain two of the allegations in the petition that were dismissed by the court. The Department argues the juvenile court actions in dismissing allegations b-1 and b-2 of the petitions necessarily conflict with its other finding and constitutes prejudicial error. We disagree.
The juvenile court’s findings do not necessarily “conflict, ” as argued by the Department. As to minor A.F., jurisdiction under section 300, subdivision (c), was properly predicated on the facts that were alleged in b-1 and b-2 of the petitions and formed a basis for jurisdiction under section 300, subdivision (c), on those grounds. However, that does not necessarily mean the facts alleged in b-1 and b-2 of the petitions form an independent basis for jurisdiction under section 300, subdivision (b). The court could properly find that mother’s conduct of exposing the minors to domestic violence by E.C., as alleged under b-1 and b-2 of the petition, did not form a basis for jurisdiction under section 300, subdivision (b), because there was no current substantial risk of serious physical injury and no allegation of past serious physical injury, as required under section 300, subdivision (b). However, the court could also concurrently and reasonably find that minor A.F. was suffering serious emotional damage from that same conduct, even if the risk of further exposure had been abated.
In any event, the Department cannot establish any prejudice flowing from the juvenile court’s dismissal of the allegations under b-1 and b-2 of the petitions. As acknowledged by the Department, the juvenile court nonetheless sustained jurisdiction under section 300, subdivisions (b) and (c), and declared the minors dependent children of the court. Thus, no prejudice flows from the court’s dismissal of the two allegations.
The Department responds that the court’s stated intention to require mother keep the restraining order against E.C. in place “was predicated on the finding of domestic violence” and with the dismissal of the b-1 and b-2 domestic violence allegations, “[t]here is nothing to prevent the mother from seeking to have the restraining order vacated.” The juvenile court sustained the petition filed on behalf of A.F. due to the serious emotional damage he suffered as a result of ongoing domestic violence, including that perpetrated by E.C. Thus, there is no prejudice from the dismissal of the b-1 and b-2 allegations.
Accordingly, we have no occasion to review the sufficiency of the evidence supporting the b-1 and b-2 allegations contained in the petitions.
II.
Reunification Services
The Department also contends the juvenile court erred in ordering reunification services for mother. We agree that the juvenile court abused its discretion in ordering reunification services under the circumstances.
Following the removal of a minor from parental custody, the parent is ordinarily provided with reunification services. (§ 361.5, subd. (a).) Section 361.5, subdivision (a), provides that whenever a child is removed from a parent’s custody, the juvenile court shall order reunification services for the parents “[e]xcept as provided in subdivision (b)....” Subdivision (b) of section 361.5 provides that services need not be provided when the court finds, by clear and convincing evidence, that any one of 15 enumerated circumstances is true. In those circumstances, “the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.)
Here, it was alleged that services were inappropriate under subdivisions (b)(2), (b)(10), (b)(11), and (b)(13) of section 361.5. With respect to subdivision (b)(2), that subdivision provides: “Reunification services need not be provided to a parent... when the court finds, by clear and convincing evidence...: [¶]... [¶] [t]hat the parent... is suffering from a mental disability that is described in Chapter 2 (commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him or her incapable of utilizing those services.” Subdivision (c) then provides, in relevant part: “When it is alleged, pursuant to paragraph (2) of subdivision (b), that the parent is incapable of utilizing services due to mental disability, the court shall order reunification services unless competent evidence from mental health professionals establishes that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within the time limits specified in subdivision (a).” (Italics added; see fn. 3, ante.) The opinions of two mental health experts are required to deny services under subdivision (b)(2). (§ 361.5, subd. (c); Fam. Code, § 7827.)
Section 361.5 provides, in relevant part:
In this case, two mental health professionals unequivocally concluded that even with the provision of services, mother would not be capable of adequately caring for the minors in the foreseeable future. Based on a recent assessment of mother, Dr. Carlson concluded: “There is no good reason to believe that she currently has the motivation, viewpoint, or receptivity at the present time that would surpass what she has had in the past. As one reviews the documentation from Solano County, one gets the feeling of deja vue all over again. As a result, one could mostly expect her to ‘go through the motions’ and ‘jump through the hoops’ with respect to participation in services. Unfortunately, I do not believe that this otherwise likable and engaging lady has the capacity within the next year to address her issues significantly enough to make her an adequate parent once services are ended and into the foreseeable future.” Also based on a recent assessment of mother, Dr. McGee-Williams concluded: “To put it simply, in the case of character disorders, the past is truly the best predictor of the future. The repetitious nature of [mother’s] life and dealings with her children, and her perception of the agencies that have tried to help her, only lead me to believe that her future with her children would involve more of the same. Unfortunately, I do not believe that she has the cognitive or intellectual resources to make the profound changes necessary to protect her children, now, or in the future and alternative arrangements should be considered at this juncture.” Both doctors also agreed that mother has a severe mental disorder or disability and continues to indulge in unlawful substance abuse. There was no other evidence from which the court could deduce that, despite these expert opinions, mother could nonetheless sufficiently benefit from services so as to make reunification possible.
The juvenile court must consider the minor’s need for stability and permanency. (In re William B. (2008) 163 Cal.App.4th 1220, 1228-1229.) “[T]here must be some ‘reasonable basis to conclude’ that reunification is possible before services are offered to a parent who need not be provided them.” (Ibid.) Under the circumstances here, reunification services would add to the time that the minors were deprived of a stable and secure home even though, given mother’s mental health status, such services would not make reunification of this family more likely. Based on the two unequivocal expert opinions, the juvenile court erred in ordering reunification services. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1065-1067.)
As services were inappropriate under subdivision (b)(2), it is unnecessary for us to address the other grounds for denial of services. (See In re D.F. (2009) 172 Cal.App.4th 538, 546.)
DISPOSITION
The juvenile court’s jurisdictional findings are affirmed. The judgment of disposition granting reunification services is reversed and the matter is remanded. The juvenile court is directed to enter a new order denying reunification services; appellant Trinity County Health and Human Services is directed to set this matter for a hearing pursuant to Welfare and Institutions Code section 361.5, subdivision (f), as soon as possible.
We concur: RAYE, P. J., NICHOLSON, J.
“(a) Except as provided in subdivision (b), ... whenever a child is removed from a parent’s... custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother....
“[¶]... [¶]
“(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:
“[¶]... [¶]
“(2) That the parent... is suffering from a mental disability that is described in Chapter 2 (commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him or her incapable of utilizing those services.
“[¶]... [¶]
“(10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent... failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent... pursuant to Section 361 and that parent... is the same parent... described in subdivision (a) and that, according to the findings of the court, this parent... 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....
“(11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent 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 the parent.
“[¶]... [¶]
“(13) That the parent... of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought the child to the court’s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.”
Section 361.5, subdivision (c), provides, in relevant part:
“When it is alleged, pursuant to paragraph (2) of subdivision (b), that the parent is incapable of utilizing services due to mental disability, the court shall order reunification services unless competent evidence from mental health professionals establishes that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within the time limits specified in subdivision (a).
“The court shall not order reunification for a parent... described in paragraph... (10), (11), (12), (13)... of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.”
Undesignated references to subdivisions are to subdivisions of section 361.5.