Filed 1/9/14 Kristina T. v. Super. Ct. CA5




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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

KRISTINA T.,
                   Petitioner,
                                                                                        F068337
         v.
                                                                            (Super. Ct. No. JP000880)
THE SUPERIOR COURT OF MERCED
COUNTY,
                                                                                    OPINION
                   Respondent;

MERCED COUNTY HUMAN SERVICES
AGENCY,

                   Real Party in Interest.


                                                   THE COURT
         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian L.
McCabe, Judge.
         Kristina T., in pro per., for Petitioner.
         No appearance for Respondent.
         James N. Fincher, County Counsel, and Sheri L. Damon, Deputy County Counsel,
for Real Party in Interest.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Cornell, J., and Detjen, J.
       Kristina T. in propria persona seeks extraordinary writ relief from the juvenile
court’s orders denying her reunification services under Welfare and Institutions Code
section 361.5, subdivision (b)(2)1 because of her mental disability and setting a section
366.26 hearing as to her four-month-old son, Justin. We deny the petition.
                     PROCEDURAL AND FACTUAL SUMMARY
       In August 2013, the Merced County Human Services Agency (agency) took then
newborn Justin into protective custody out of concern his mother, Kristina, could not take
care of him. According to the hospital staff, Kristina appeared mentally unstable and
delusional. Kristina’s mother told the staff Kristina was diagnosed with schizophrenia
and refused medication and treatment because she did not believe there was anything
wrong with her. The previous March, the agency removed Kristina’s other three minor
children because of neglect and placed them with their fathers.
       The agency filed a dependency petition on Justin’s behalf and identified Jason as
his father. Jason’s whereabouts were unknown.
       The juvenile court appointed a guardian ad litem for Kristina and ordered Justin
detained. The juvenile court also adjudged Justin a dependent child and ordered Kristina
to undergo a psychological evaluation to determine if she could benefit from reunification
services. If the result of the first psychological evaluation was that Kristina would not
benefit from services, then the court’s order included a second evaluation. The agency
placed Justin in foster care.
       In October 2013, Kristina was evaluated by two clinical psychologists who
confirmed a diagnosis of schizophrenia and opined she had a mental disability that
rendered her incapable of benefiting from reunification services. One of the


1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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psychologists stated Kristina was experiencing a thought disorder manifested by unusual
perceptual experiences, inappropriate and constricted affect and odd, eccentric, and
unusual behavior. Kristina, however, denied having any psychological disturbance and
refused psychological treatment. Both psychologists believed that Kristina had been
suffering from psychological problems for some time, possibly years.
       In light of the psychologists’ reports, the agency recommended the juvenile court
deny Kristina reunification services under section 361.5, subdivision (b)(2) because of
her mental disability.
       In November 2013, the juvenile court convened the dispositional hearing.
Kristina’s attorney informed the court that Kristina had been taking psychotropic
medication for almost a week and asked for a six-week continuance so that she could be
reevaluated after the medication had taken effect. The juvenile court declined to do so,
ordered Justin removed from Kristina’s custody, denied her reunification services as
recommended, and set a section 366.26 hearing for March 2014. This petition ensued.
                                      DISCUSSION
       Kristina contends the juvenile court erred in removing Justin from her custody and
denying her reunification services under section 361.5, subdivision (b)(2).2
       Kristina seeks an extraordinary writ directing the juvenile court to order
reunification services for her and/or to return Justin to her custody. We decline to
provide relief for the reasons we now explain.



2      Real party in interest contends Kristina’s writ petition is facially inadequate and
should be dismissed because Kristina did not include a statement of facts and a
memorandum of points and authorities and did not support her claims of error with
proper citation to the appellate record and to legal authority as required by California
Rules of Court, rule 8.452(b). We decline to dismiss the writ petition and will liberally
construe it in favor of its sufficiency. (Cal. Rules of Court, rule 8.452(a)(1).)


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        The juvenile court can remove a child from parental custody, if it finds “[t]here is
or would be a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s ... physical custody.” (§ 361, subd. (c)(1).)
The court must also determine whether reasonable efforts were made to prevent or
eliminate the need for the child’s removal. (§ 361, subd. (d).)
        The juvenile court can also deny a parent reunification services if it finds by clear
and convincing evidence that the parent is described by any of the exceptions set forth in
section 361.5, subdivision (b). (§ 361.5, subd. (b)(1)-(16).)
        We review the juvenile court’s orders for substantial evidence, bearing in mind
that clear and convincing evidence requires a heightened burden of proof. (In re Kristin
H. (1996) 46 Cal.App.4th 1635, 1654.) Further, we confine our review to the record that
was before the juvenile court for consideration. (In re Zeth S. (2003) 31 Cal.4th 396,
405.)
        Kristina in essence contends there was no need to remove Justin from her custody
because he was never in danger of being physically, verbally or sexually abused. Instead,
she argues, he was removed because her house was dirty and she neglected him. Further,
she argues, it was safe to return him to her custody because she was living with her
mother and her mental state had improved with medication. She included with her writ
petition a letter from her physician dated December 11, 2013, stating her thoughts were
“much more clear” since she began taking medication.
        As we stated above, this court can only review evidence considered by the juvenile
court. Since the physician’s progress letter was not before the juvenile court, we will not
review it. Further, in reviewing the record, we determine whether substantial evidence
supports the order the juvenile court made, not whether it supports a contrary order.

                                              4
       Here, there was compelling evidence that Justin could not be safely returned to
Kristina’s custody. According to the psychologists, she was so delusional that she was
unable to care for herself much less Justin. Further, the juvenile court was aware that
Kristina was living with her mother yet determined that placing Justin with Kristina was
not an alternative to removal. Given the severity of Kristina’s illness at that time, the
juvenile court could reasonably conclude Justin would not be safe living with Kristina
even if the grandmother were there.
       Further, substantial evidence supports the juvenile court’s order denying Kristina
reunification services. The juvenile court may deny a parent reunification services under
section 361.5, subdivision (b)(2), if it finds by clear and convincing evidence that the
parent suffers “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.” (§ 361.5, subd. (b)(2).) Family Code section 7827,
subdivision (a) defines the “mentally disabled” parent as one suffering a mental
incapacity or mental disorder that renders the parent unable to adequately care for and
control the child. A finding of mental disability must be supported by the opinion of two
mental health experts who meet the qualifications set forth in Family Code section 7827,
subdivision (c).
       In this case, the juvenile court had the expert opinion of two psychologists that
Kristina suffers from a mental disability that renders her incapable of adequately caring
for Justin.
       Kristina does not dispute the substance of the psychologists’ opinions. Instead,
she offers medical information that her mental state subsequently improved with
medication. Based on that information, she contends, the juvenile court should
reevaluate whether she has a mental disability and whether with time and proper
treatment she could properly care for Justin.

                                                5
       For the reason stated above, we cannot consider the physician’s letter.
Nevertheless, Kristina may petition the juvenile court under section 388 to modify its
order denying her reunification services on the grounds that her improved mental health
constitutes a change in circumstances subsequent to the juvenile court’s denial order. In
doing so, Kristina would also have to show that reunification services would serve
Justin’s best interests.3
       We conclude substantial evidence supports the juvenile court’s orders removing
Justin from Kristina’s custody and denying her reunification services under subdivision
(b)(2) of section 361.5 and deny the petition.
                                     DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




3       Section 388 allows the parent of a child adjudged a dependent of the juvenile court
to petition the court to change, modify or set aside any order upon grounds of change of
circumstance or new evidence.


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