Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 78006
Siggins, J.
P.O., the father of six minor children, petitions under California Rules of Court, rule 8.452 to vacate an order of the juvenile court setting a hearing under Welfare and Institutions Code section 366.26 that may result in termination of his parental rights. Father argues his rights to due process were violated when he did not receive notice of certain hearings or of the grounds relied upon by the San Mateo County Human Services Agency (County) to deny him reunification services. Father also contends he was entitled to services under section 361.5, because the County knew of Father’s location within six months of the children’s out-of-home placement, and because one mental health evaluator concluded Father could benefit from services.
All further statutory references are to the Welfare and Institutions Code.
Father’s claim that he was denied due process because he had no notice of certain hearings was forfeited. Moreover, Father has not shown that he suffered any prejudice from the alleged defects in notice or that he was entitled to services under section 361.5, subdivision (d). Substantial evidence supports the court’s decision under section 361.5, subdivision (b)(2) to deny reunification services to Father because he suffers from a qualifying mental disability. We therefore deny the petition on its merits.
FACTUAL AND PROCEDURAL BACKGROUND
Father’s six children, who ranged in age from seven to 12 years old, were taken into protective custody by San Joaquin County Child Protective Services in November 2007, when Father was arrested on child endangerment charges. Juvenile dependency petitions were filed alleging that Father failed to protect the children (§ 300, subd. (b)) and provide for their support (§ 300, subd. (g)). Mother’s whereabouts were unknown. The family had a history of prior referrals, and Mother lost custody of the children after a prior dependency in 2003. The 2007 petitions alleged a history of chronic parental neglect. Father was homeless, had a transient lifestyle and mental health issues, and the children had not attended school that year.
Father was arrested in Contra Costa County and transported to Santa Clara County to face charges. He was not present at the detention hearing and counsel was appointed to represent him. A jurisdictional hearing was set in these proceedings for December 4, 2007. An order to transport Father to the jurisdictional hearing was issued on November 26, but Father was released from jail on November 29. The hearing was continued several times until January 17, 2008, but child protective services was unable to locate Father and serve him with notice of the hearing. Father was represented by counsel at the January 17 hearing, and the court found that the unsuccessful efforts to locate Father were reasonable. The court took jurisdiction and transferred the children’s cases to San Mateo County.
A dispositional hearing was held in San Mateo County. The County reported that in a prior dependency, Father was granted sole physical custody of the children in 2003. A psychological evaluation prepared in the prior dependency reflects that Father had passive-aggressive and obsessive-compulsive personality traits; rigid and inflexible attitudes, uneven judgment, and a lack of impulse control; and was at risk of abusing drugs and alcohol. The evaluation concluded that Father’s motivation to change or potential for insight was “quite limited,” and recommended that Father and the children live with paternal relatives who could help him fulfill his parenting responsibilities.
It appears Father and the children lived with relatives from 2003 until mid-2007, when Father left with the children. Child protective services received referrals that Father was mentally ill and was traveling with the children in an RV, or living in a camper shell without running water or electricity. Relatives reported that Father engaged in “odd behavior,” made “nonsensical paranoid statements,” and “refused to listen to anyone attempting to help.” The children were reportedly filthy, were not attending school, and were terrified of Father who was said to be verbally abusive. Father reportedly made death threats against the children and physically assaulted the oldest child. Father later told police officers that after his golden retriever bit him, he tied the dog to a tree and killed it with a sledge hammer in front of the children.
The current dependency petitions were filed when the paternal grandparents could not continue to care for the children following Father’s arrest in November 2007. Psychological assessments indicated all the children were in need of therapy. Two of them were also suffering developmental delays.
Following his release from jail, Father’s whereabouts were still unknown at the time of the dispositional hearing in April 2008. Although Father had contacted his relatives, he refused to provide them with a telephone number or address at which he could be reached. At the dispositional hearing the court found by clear and convincing evidence that Father’s whereabouts were unknown, and a reasonably diligent search had failed to locate him. Pursuant to section 361.5, subdivision (b)(1), the court ordered that reunification services would not be provided to Father. The children were then living with relatives who were willing to provide long-term care and to become legal guardians if necessary. Three were with their maternal grandmother and three were with a paternal great aunt and uncle. A six-month review hearing was set for July 16, 2008.
In May 2008, the County applied for a restraining order to protect the children and their caretakers from Father, who had recently approached the home of the paternal great aunt and uncle, and told the children he was “on the run” from the police. By June 2008, the County suspected that Father was intentionally avoiding contact with the County, and the court imposed a “no contact” order between the children and Father. In July 2008, the County informed the court of a recent incident when Father was holding a bag of ammunition and seen wearing a large trench coat “ ‘stuffed’ with three handguns.” Father had reportedly stated his intention to kill the children’s maternal grandmother and all the social workers and police involved in the case.
On July 16, 2008, Father was located and arrested. The court issued a temporary restraining order against Father following his arrest because he was found with four guns and reportedly planned to attend the scheduled juvenile court hearing to “shoot and kill his targeted victims.” Father was represented by counsel and stipulated to a one-year restraining order. Father was ordered to undergo a psychological evaluation at his counsel’s request, and come back for a six-month review hearing in September 2008.
According to the County’s September 2008 addendum report, Father was charged with 13 felonies stemming from his July 16, 2008, arrest.
By the September 2008 hearing, the children were all living in the home of their maternal grandmother. Overall they were doing well, but continued to require therapy and supportive services. Father was present at the hearing and represented by counsel. A psychological evaluation had been prepared by Dr. Jeffrey Kline, who diagnosed Father with, inter alia, bipolar disorder, single manic episode; delusional disorder (persecutory type); cannabis dependence; and personality disorder with some apparent paranoid and histrionic features. Father expressed no regrets for his behavior and had no second thoughts about carrying weapons. He was angry with the relatives and police officers involved in his case, but denied he had a current plan to harm anyone. Dr. Kline reported that Father’s “persecutory delusions . . ., persistent anger and hostility, and untreated mental disorders, for which he had no insight . . . [created] a ‘substantial risk of harm to any of these individuals should he be released, particularly if symptoms of mania re-emerge.’ ”
Father “[did] not appreciate that the children might have been traumatized by his actions . . . and denied having any problems with his parenting. Consequently, he adamantly denied any need for reunification or mental health services.” Dr. Kline concluded that “With a reasonable degree of professional certainty . . . the children would be at extreme risk of maltreatment should they be returned to [Father’s] care at this time or in the foreseeable future.” It was his opinion that “With a reasonable degree of professional certainty, it is unlikely that [Father] is capable of benefiting from reunification services at this time.” Dr. Kline also reported that “Given the extent and severity of his clinical condition as described in [the] evaluation, his pathological denial of having neglected or maltreated his children in any way, and his abject rejection of reunification services, it appears unlikely that he would be capable of completing the objectives of a service plan offered and provided to him in the next six months.”
During the September 2008 hearing, the County requested that a second evaluation be conducted to “have someone else evaluate as to whether [Father] is amenable to services. As of right now, it appears that he’s not.” When Father’s counsel opposed a second mental health evaluation, county counsel explained: “The reason for the second psych eval, your Honor, is that it’s required to evaluate the appropriateness [of] applying the 361.5(b) bypass. We can’t apply that section without the second evaluation. . . . The current evaluator says he is not amenable to services. If a second evaluator says the same thing, at that point the County would have really no choice but to recommend not offering services.” The court continued the hearing and ordered Father to participate in a second psychological evaluation, noting that “The law requires a second evaluation for bypass.”
The court also found Mother had made no progress on her case plan and terminated her reunification services.
Father was next before the court with counsel for the final six-month review hearing in December 2008. The second psychological evaluation was performed by Dr. Ubaldo Sanchez, who diagnosed Father with, inter alia, polysubstance dependence (in remission due to incarceration) and personality disorder (with histrionic, paranoid and obsessive-compulsive traits). Dr. Sanchez concluded the “children would be at risk for their emotional well-being if returned to [Father’s] custody at this time . . . because he minimizes the incidents which led to the removal of his children and he does not assume responsibility.” Dr. Sanchez believed Father could have contact with the children when services were complete only if his therapist believed he would not threaten his children’s emotional functioning. Dr. Sanchez did not directly address whether there was any substantial probability the children could be returned to Father if he participated in six months of services or whether Father could complete the objectives of a case plan and successfully reunify with the children. But he thought Father “would benefit from mental health treatment to help him become more sensitive and aware of objective reality and help him confront his weaknesses and deficiencies.”
When Father met with Dr. Sanchez, he said that he would participate in mental health treatment and parenting education. But when Father met with a social worker at the jail shortly before the hearing, he said he was not interested in participating in services. A few days later in the review hearing, Father testified he would participate in services because it was a necessary “part of the game,” and testified he “really [couldn’t] see [him]self taking medication.” Father was then in custody and did not want the children to visit him in jail.
Father asked the social worker, “why would I need [mental health services], to do what? To recover from societal ills?” Father also told the social worker he found out the children were in child protective services’ custody the day after he got out of jail in November 2007, but he did not want to “play the game” with child protective services because he did not “want anyone to tell [him] what to do.” Father said he did not need drug or mental health treatment, and believed any trauma to the children resulted because they were taken from his custody.
The County recommended that Father be declined reunification services because the psychological evaluations and Father’s behavior and statements showed he would not benefit from them. The report also recommended that the no contact order between Father and the children remain in place, and that a hearing be set under section 366.26. Father remained incarcerated, and the report noted that Father’s whereabouts had been unknown for more than six months after the children were taken into protective care.
In February 2008, Father appeared briefly at the home of parental relatives where three of the children were living, but he had no contact with the County until he was arrested on July 16, 2008.
Father’s counsel objected and argued Father had not received notice of the grounds supporting the recommendation to deny services. Father’s counsel understood the County “may be proceeding on the fact that [Father’s] whereabouts are unknown, or perhaps that he has a mental disability,” but claimed the grounds were not “clearly set forth.” The County argued the grounds to decline services were described in the County’s report, and were stated by county counsel at the hearing in September 2008. The court determined that the request for Father to undergo a second mental health evaluation “clearly implied” it was for the purposes of possibly declining services. Therefore, in the circumstances, Father received sufficient notice.
The court concluded that Father suffered from a mental disability that rendered him incapable of utilizing services, and that mental health professionals indicated he was unlikely to be able to care for the children within 12 months. Accordingly, services were declined pursuant to section 361.5, subdivision (b)(2).
The court considered Dr. Sanchez’s evaluation to refer to services that might permit Father to eventually have contact with the children, rather than services that could lead to reunification. The court found that its decision to deny services was supported by Father’s testimony, and that three mental health reports (including an evaluation prepared during the previous dependency in 2002) were “very much unanimous in their diagnostic impressions.”
The court saw “no hope of reunification,” did not believe that Father could “in [any] way, shape or form . . . parent these children,” and felt there was “very little hope, if any that he will do what he needs to do to ever be in a position to be a productive influence on their lives.” The court noted Father’s testimony that he could not see himself taking medication, and stated that “very little of his lengthy testimony touched upon his children at all,” as it was “all about him.”
The court had previously bypassed services pursuant to section 361.5, subdivision (b)(1) because Father’s whereabouts were unknown, and would not order services under subdivision (d) because Father was not located within six months of the children’s out-of-home placement. The court found by clear and convincing evidence that it had been more than six months since Father contacted and visited the children, and ordered a hearing set under section 366.26. (See § 366.21, subdivision (e); Cal. Rules of Court, rule 5.710(f)(1)(B).) Father filed this writ petition seeking review of the court’s orders.
DISCUSSION
A. Notice of Hearings
Father argues the failure to notify him of the November 2007 detention hearing or the jurisdiction hearing initially set for December 4, 2007, violated his rights to due process. But Father was represented by counsel at both hearings, and the record does not disclose that any objection was asserted on Father’s behalf due to a lack of notice, either in the juvenile court or any appeal from a juvenile court order. (See Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 [“An appeal from the most recent order in a dependency matter may not challenge earlier orders for which the time for filing an appeal has passed”]; see also Contra Costa County Children & Family Services Bureau v. Superior Court (2004) 117 Cal.App.4th 111, 118-119 [declining to permit collateral attack on orders as to which the time for appeal has lapsed].) Father does not claim that he was prejudiced by the alleged lack of notice, and he cites no authority that would support relief under these circumstances. (See In re Wilford J. (2005) 131 Cal.App.4th 742, 754-755 [defect in notice procedures may be forfeited on appeal if not first raised in juvenile court, where it may be easily corrected].)
Father was apparently released from jail on November 29, 2007. Although he was consistently represented by counsel, Father did not attend the December 4 hearing or any other hearings until he was arrested in July 2008. In January 2008, the court determined that despite reasonable efforts to do so, Father could not be located or served. In May 2008, the court determined that Father was intentionally avoiding contact with child protective services. Father does not address the evidence that indicates he was aware of the dependency proceedings, yet failed to contact child protective services, and he has not shown that the alleged failures to give him notice were prejudicial, even if he did not forfeit this issue by his failure to raise it.
B. Notice of Basis for Bypass of Services
Father also challenges the adequacy of notice that the County would seek to deny him reunification services under section 361.5, subdivision (b)(2), on the grounds that he is incapable of utilizing such services due to a mental disability. Father claims the County’s report “does not set forth in the recommendations the intent of the County to seek bypass of services to father,” but the record as a whole supports the juvenile court’s conclusion that Father had adequate notice of the possible grounds for bypass. As the juvenile court found when it rejected this argument at the December 2008 six-month review hearing, it was “clearly implied at least that when the second mental health evaluation was requested, that it was for that purpose.” Father does not discuss the juvenile court’s ruling, which was supported by substantial evidence.
Nor does Father support his assertion that the addendum report prepared for the December 2008 six-month review hearing “was not mailed to [him] in advance of the hearing and was given to him by counsel shortly before the commencement of the hearing.”
C. Application of Section 361.5, Subdivision (d)
Section 361.5, subdivision (b)(1) provides that reunification services need not be provided when the court finds, by clear and convincing evidence, “[t]hat the whereabouts of the parent or guardian is unknown.” At the April 2008 disposition hearing, the juvenile court relied upon subdivision (b)(1) to deny Father reunification services. Subdivision (d) provides: “If reunification services are not ordered pursuant to paragraph (1) of subdivision (b) and the whereabouts of a parent become known within six months of the out-of-home placement of the child, the court shall order the social worker to provide family reunification services in accordance with this subdivision.” Father argues that in spite of the court’s ruling at the April disposition hearing, he was entitled to services because his whereabouts became known to the Agency when he was taken into custody on July 16, 2008.
Father apparently assumes, without citation to authority, that the six-month period provided in subdivision (d) should be calculated from the time of the April 2008 dispositional hearing. The County, on the other hand, points out that the phrase “within six months of the out-of-home placement of the child,” is undefined, and suggests the six-month period should be calculated from the date the children entered foster care on January 17, 2008. The juvenile court declined to order services for Father under subdivision (d), and apparently relied on a calculation that ran from the date of the children’s initial removal in November 2007. We need not decide which of these interpretations is correct because the court also denied services pursuant to section 361.5, subdivision (b)(2).
Section 361.5, subdivision (b)(2) states that reunification services need not be provided when a parent’s mental disability “renders him or her incapable of utilizing those services.” The juvenile court found, by clear and convincing evidence, that Father came within the provisions of subdivision (b)(2). Thus, no reunification services were required, even assuming Father would otherwise have come within the provisions of subdivision (d) of section 361.5. (See Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72 [order for bypass of services may be upheld under any of the applicable subsections listed in section 361.5, subdivision (b)].)
D. The Denial of Services Due to Father’s Mental Disability
“Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence . . . [t]hat the parent or guardian is suffering from a mental disability . . . that renders him or her incapable of utilizing those services.” (§ 361.5, subd. (b)(2).) When it is alleged that services should be denied because a parent has such a 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 . . . .” (§ 361.5, subd. (c).) “To support a finding under subdivision (b)(2) of section 361.5, the juvenile court must obtain the reports of two qualified experts. (§ 361.5, subd. (b)(2); Fam. Code, § 7827, subd. (c).)” (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 473.)
Father argues a position expressed in the dissent to Curtis F., that the two qualified experts engaged to render an opinion on the standard articulated in section 361.5, subdivision (b)(2) must agree not only that a parent has a mental disability, but that the parent is also incapable of utilizing services. He contends the court erroneously denied services in this case because Dr. Sanchez said Father could benefit from them. But Curtis F. holds that “there is no requirement that both experts must agree a parent is unlikely to benefit from services before the court may deny the parent services. Instead, the statute requires a showing only of evidence proffered by both experts regarding a parent’s mental disability, evidence from which the court then can make inferences and base its findings.” (Curtis F. v. Superior Court, supra, 80 Cal.App.4th at p. 474.) Father also fails to address the juvenile court’s interpretation that Dr. Sanchez’s report referred to services that might eventually only allow Father to have contact with the children, rather than services that could lead to his reunification with them.
The cases Father relies upon to support his argument are also distinguishable. In In re Rebecca H. (1991) 227 Cal.App.3d 825, the court concluded reunification services were improperly denied when one of the two experts specifically testified that the parent had no incapacity or mental disorder that rendered him unable to care for his children, and “was competent to ‘learn the things that are required of a person in reunification. . . .’ and could benefit from reunification services.” (Id. at p. 841.) Neither Dr. Kline’s nor Dr. Sanchez’s report contains any such affirmative statements. In In re Catherine S. (1991) 230 Cal.App.3d 1253, the court vacated an order denying reunification services when one of two experts was found unqualified because he was not licensed. Although the Catherine S. court also noted that the existence of the underlying mental disability must be established by two qualified experts, a finding that the parent is not able to utilize reunification services within the statutory time frame requires only “competent evidence from mental health professionals.” (Id. at pp. 1257-1258.)
In this case, both experts’ reports suggest Father was unlikely to be capable of caring for his children within the allotted time because of a mental disability, even if he were provided reunification services. (See Curtis F. v. Superior Court, supra, 80 Cal.App.4th at p. 474.) Dr. Kline specifically concluded that Father was not capable of benefitting from reunification services, and that it was unlikely he would be capable of completing the objectives of a reunification plan within the statutory time frame. The evidence of Father’s behavior over the course of these proceedings was most troublesome. He said contradictory things about his willingness to participate in services, did not recognize the dangerousness of his behavior, and testified he would not be willing to take medication for his mental disorder. Substantial evidence supports the court’s denial of services under section 361.5, subdivision (b)(2). (Ibid.)
The court was not required to find services would be detrimental to the children, because the court did not decline services due to Father’s incarceration. (§ 361.5, subd. (e).)
DISPOSITION
The order to show cause is discharged, and the petition for extraordinary writ is denied on the merits. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452; In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Rule 8.264(b)(3).)
We concur: McGuiness, P. J., Pollak, J.