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N.E. v. Superior Court (San Diego County Health and Human Services Agency)

California Court of Appeals, Fourth District, First Division
Jul 2, 2008
No. D052668 (Cal. Ct. App. Jul. 2, 2008)

Opinion


N.E., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent, SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. D052668 California Court of Appeal, Fourth District, First Division July 2, 2008

NOT TO BE PUBLISHED

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. San Diego County No. NJ12299D, Michael Imhoff, Commissioner.

McINTYRE, J.

N.E. seeks review of juvenile court orders denying family reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(2), (10) and (11), and setting a permanency plan selection and implementation hearing under section 366.26. We deny the petition.

Further statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

A.S., born October 2007, is the daughter of N.E. and John S. We discuss the case only as it pertains to N.E. (John did not file a timely petition for writ relief.)

On October 31, 2007, the San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b) alleging A.S. was at substantial risk of serious physical harm or illness caused by N.E.'s inability to provide regular care due to mental illness. The Agency alleged N.E. suffered from bipolar disorder and had a history of multiple psychiatric hospitalizations and homelessness.

In its detention and jurisdiction reports, the Agency stated that 25-year-old N.E. had been chronically homeless for many years and had had multiple psychiatric hospitalizations. N.E. told the social worker she was diagnosed with bipolar disorder but might also have obsessive compulsive disorder and paranoia. A.S. was N.E.'s fifth child. Three of her children had been dependents of the juvenile court (sibling cases). (N.E. voluntarily relinquished her parental rights to another child.) During the sibling dependency proceedings, N.E. was unable to stabilize her mental health and improve her parenting skills, and the court had terminated her parental rights. The Agency reported that N.E. had received services from many agencies but still struggled with mental health issues, proper hygiene and maintaining stable housing.

The Agency recommended the court not order reunification services to N.E. under section 361.5, subdivision (b)(2), (10) and (11) at disposition, and proceed to a section 366.26 hearing. The Agency filed requests for judicial notice of the petitions, findings and orders in two of the sibling cases.

On January 22, 2008, the court sustained the jurisdictional allegations under section 300, subdivision (b).

The disposition hearing was held on March 4 and March 6, 2007. The court received into evidence the Agency's reports, including a psychological evaluation of N.E. by Suzanne O'Brien, Ph.D. The court granted the Agency's request for judicial notice.

Dr. O'Brien diagnosed N.E. with bipolar disorder, by history, and personality disorder. N.E. did not exhibit any serious cognitive impairment that would interfere with problem solving abilities, but a review of the available records, the clinical interview, testing and observations indicated concerns about N.E.'s judgment. Based on her findings, Dr. O'Brien did not believe N.E. would benefit from reunification services.

The Agency reported that N.E. did not comply with services offered after the detention hearing, and she did not consistently visit A.S. or improve her parenting skills. At a visit with A.S. on February 26 N.E. broke blood vessels in A.S.'s face by repeatedly kissing her hard in the same place.

The court removed A.S. from parental custody. The court found by clear and convincing evidence that N.E. had not made a reasonable effort to treat her problems as required under section 361.5, subdivision (b)(10) and (11), and it was not in A.S.'s best interest to order a plan of reunification services. The court also determined that section 361.5, subdivision (b)(2) applied because N.E.'s mental health condition made it unlikely she would be capable of adequately caring for A.S. within reunification time limits. The court set a section 366.26 hearing.

N.E. petitions for review of the court's orders. (§ 366.26, subd. (b)(l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause and the Agency responded. The parties waived oral argument.

DISCUSSION

A

N.E. contends the trial court erred when it denied reunification services under section 361.5, subdivision (b)(2), (10) and (11), and set a section 366.26 hearing. She argues section 361.5, subdivision (b)(2) did not apply because the Agency did not submit two expert opinions as required by Family Code section 7827; therefore insufficient evidence supports the court's finding that N.E. was suffering from a mental disability that rendered her incapable of utilizing services. N.E. also contends the evidence was insufficient to support a finding that she had not made a reasonable effort to treat the problems that led to the termination of reunification services (§ 361.5, subd. (b)(10)) and termination of parental rights (§ 361.5, subd. (b)(11)) in the sibling cases.

The Agency argues substantial evidence supports the court's findings. The Agency submits the evidence clearly shows N.E. suffered from a mental disability rendering her unable to adequately care for A.S., and she did not make any progress to alleviate the problems that had led to the removal of three children from her care and custody.

While N.E.'s argument concerning the application of Family Code section 7827 has merit, we need not address it here because the court's findings under section 361.5, subdivision (b)(10) and (11) are supported by substantial evidence. As we discuss post, the court did not err when it denied reunification services to N.E. and set a section 366.26 hearing.

B

Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Unless a specific statutory exception applies, the court must provide services designed to reunify the family within the statutory time period. (§ 361.5; 42 U.S.C. § 629a(a)(7); see In re Alanna A., supra, 135 Cal.App.4th at pp. 563-564.) At the disposition hearing, before it may deny reunification services to a parent, the court must find by clear and convincing evidence that one or more of the subdivisions described in section 361.5, subdivision (b) apply. (§ 361.5, subd. (b)(1)-(15); see title 42 U.S.C. § 671(a)(15)(D); Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845-846.)

As relevant here, under section 361.5, subdivision (b), the court need not provide reunification services to a parent where:

". . . 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 . . . . " (§ 361.5, subd. (b)(10).)

". . . 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." (§ 361.5, subd. (b)(11).)

If paragraph (10) or (11) applies, the court shall not order reunification services for a parent unless the court finds, by clear and convincing evidence, that reunification is in the best interests of the child. (§ 361.5, subd. (c).)

We review an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)

C

N.E. does not contest the findings that her reunification services and parental rights had been terminated in the sibling cases. She challenges only the findings under the second (identical) prongs of section 361.5, subdivision (b)(10) and (11). Citing Cheryl P. v. Superior Court, supra, 139 Cal.App.4th 87, N.E. contends section 361.5, subdivision (c) does not require the parent to have eliminated the problems that led to the removal of the dependent child's siblings but to merely show the parent made a reasonable effort to treat those problems. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 99.) N.E. argues that given her mental disabilities, she made a reasonable effort to treat the problems that led to the removal of the siblings by completing one of the court-ordered psychological evaluations in A.S.'s case, visiting A.S., enrolling in a parenting program and taking prescribed medication.

This court has stated that the use of the term "reasonable" in the context of section 361.5, subdivision (b)(10) is used "to ensure that lackadaisical or half-hearted efforts would not be deemed adequate . . . ." (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 99.) This analysis also applies to the identical language found in section 361.5, subdivision (b)(11).

Here, even in view of N.E.'s mental health condition, substantial evidence supports the court's findings that N.E. did not make a reasonable effort to treat the problems that led to the removal of A.S.'s siblings from her care. The record permits the reasonable inference N.E. was offered or provided multiple services including psychiatric intervention from 2001 through 2006. In the sibling cases, the court found that N.E. did not make substantial progress to alleviate or mitigate the reasons for the dependency proceedings. Dr. O'Brien noted it was "apparent that [N.E.] has not changed her lifestyle or health habits as a result of losing her children."

At A.S.'s detention hearing, the court ordered the Agency to offer or provide parenting classes and counseling, and supervised liberal visitation to N.E. The Agency facilitated visitation between N.E. and A.S., and referred N.E. for individual therapy, parenting programs, domestic violence programs and emergency services. The record shows that N.E.'s efforts to participate in offered services were half-hearted. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 99.)

N.E. did not attend five of the last 10 visits with A.S. scheduled before February 20, 2007. She cancelled two appointments for a second psychological examination and did not reschedule despite the social worker's efforts to facilitate a third appointment. The visitation center issued a cancellation notice due to "no shows." On February 25 N.E. was terminated from a parenting education program for lack of attendance.

Substantial evidence supports the findings under section 361.5, subdivision (b)(10) and (11), and subdivision (c). We conclude the court did not err when it bypassed reunification services and set a hearing to select and implement a permanency plan for A.S. (§ 366.26.)

DISPOSITION

The petition is denied.

WE CONCUR: HUFFMAN, Acting P. J., AARON, J.


Summaries of

N.E. v. Superior Court (San Diego County Health and Human Services Agency)

California Court of Appeals, Fourth District, First Division
Jul 2, 2008
No. D052668 (Cal. Ct. App. Jul. 2, 2008)
Case details for

N.E. v. Superior Court (San Diego County Health and Human Services Agency)

Case Details

Full title:N.E., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 2, 2008

Citations

No. D052668 (Cal. Ct. App. Jul. 2, 2008)