Filed 5/2/13 S.W. v. Super. Ct. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



S.W.,

         Petitioner,                                                     E058034

v.                                                                       (Super.Ct.No. RIJ114244)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for extraordinary writ. Jacqueline Jackson,

Judge. Petition denied.

         Phillip Malisos for Petitioner.

         No appearance for Respondent.

         Pamela J. Wall, County Counsel and Anna M. Deckert, Deputy County Counsel,

for Real Party in Interest.

                                                             1
       Petitioner S.W. (mother) asks this court to direct the juvenile court to vacate its

order of February 7, 2013, denying her reunification services for her daughter D.W.

(child) and setting a hearing under Welfare and Institutions Code, section 366.261 at

which it will determine whether to terminate mother’s parental rights. Mother contends

the juvenile court’s order is not supported by substantial evidence. As discussed below,

substantial evidence supports the court’s order based on mother’s mental disability that

makes her incapable of benefitting from reunification services (§ 361.5, subd. (b)(2)).

Given this conclusion, we need not address mother’s argument that substantial evidence

does not support the court’s order based on mother’s failure to address the problems that

led to the removal of seven previous children (§ 361.5, subd. (b)(11)). We therefore deny

mother’s petition.

                                 FACTS AND PROCEDURE

       Family Maintenance – March to July 2012

       On March 7, 2012, the Riverside County Department of Public Social Services

(DPSS) filed a section 300 petition alleging mother’s mental health issues and history of

failure to regularly take her prescribed medication prevented her from providing regular

care to the child. The petition also alleged mother failed to reunify with seven previous

children, has a history of abusing controlled substances, has a criminal history for battery,




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


                                              2
assault and drug charges, and has a history of engaging in domestic violence with the

child’s father.2

          In the detention report filed March 7, 2012, DPSS recommended the juvenile court

allow mother to retain custody of the child and to provide her with family maintenance

services. Mother had been staying at a sober living home for the previous few weeks and

it was reported that she was not taking her medications and was constantly cussing and

screaming at the child and “saying scary things” to her like calling her the anti-Christ and

telling people the child needed to be “exercised.”

          At the detention hearing held on March 8, 2013, the juvenile court detained the

child from her father’s custody but permitted the child to remain in mother’s custody.

          In the jurisdiction and disposition report filed April 13, 2012, DPSS recommended

the child remain with mother on family maintenance. At the jurisdiction and disposition

hearing held on May 24, 2012, the juvenile court sustained the section 300 petition,

granted family maintenance services to mother and denied reunification services to the

father.

          Supplemental Petition and Detention – July 2012

          On July 17, 2012, DPSS filed a supplemental dependency petition under section

387, in which it alleged mother was not taking her medications and “may be suffering

from delusions and hallucinations.” In the detention report filed on that date, the social

worker reported receiving a referral from a person, who did not want to be identified, at

          2
          The petition included allegations regarding the child’s father. Because father is
not a party to this writ petition, he will be mentioned only when necessary for clarity.


                                               3
mother’s new sober living home. The referent told the social worker that mother was not

taking her medications, was acting crazy and delusional, was making threats to hurt

people, and said she was getting messages to kill the child. The child was removed from

mother and placed in foster care. At the detention hearing held on July 18, 2012, the

juvenile court ordered the child detained.

       The jurisdiction/disposition hearing was set for August 13, 2012. In the report

prepared for that hearing, DPSS recommended offering mother reunification services.

However, mother’s counsel asked for a contested jurisdiction hearing on the

supplemental petition, which the court then set for September 11. In the addendum report

filed for the September 11 hearing, DPSS changed its recommendation, asked the court to

deny mother reunification services and set a section 366.26 hearing. The reason for the

changed recommendation was that mother was not cooperating in obtaining a medication

evaluation. This was important because mother’s therapist stated mother could not

benefit from reunification services until she first addressed her mental health issues.

Mother’s mental health had deteriorated since the previous hearing, but mother was not

cooperating in efforts to stabilize her mental health.

       On September 11, 2012, the juvenile court ordered mother to participate in two

psychological evaluations. The hearing was continued to October 24.

       Mother participated in two psychological evaluations, both on October 1, 2012.

Edward J. Ryan, Ph.D., prepared a report dated October 9, 2012. Dr. Ryan reported that

mother cooperated only minimally with the evaluation process, and that she presented as

paranoid and delusional, with poor insight and judgment. Mother told Dr. Ryan she was


                                              4
not taking any medications. The evaluation showed that mother functions “in the

borderline range of intelligence,” that is, about in the bottom 10 percent, which would

limit, but not completely rule out, her ability to benefit from services. Dr. Ryan

concluded: “It is my opinion that the level of pathology of her mental health issues is

such as to preclude any possibility of her benefitting from reunification services.”

       Robert L. Suiter, Ph.D., Psy.D., filed a report consistent with that of Dr. Ryan.

During the evaluation, mother stated that she was not taking any psychotropic

medications. Mother was “minimally cooperative” and her insight and judgment were

poor. Mother displayed overt paranoia. Dr. Suiter administered to mother a personality

test, known as Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Mother asked

many questions during the test and took a very long time to complete it, but left about 20

percent of the questions unanswered, which made the test results unusable. Based on his

interview with mother, Dr. Suiter determined that mother was paranoid, delusional and

confused, with no insight into her mental illness or the reasons the child and previous

children had been removed from her care. Dr. Suiter opined that there was no reasonable

likelihood that mother could benefit from services in the next 6 to 12 months “given the

nature of her mental disorder, her lack of insight and her resistance to treatment.”

       On October 24, 2012, the juvenile court continued the hearing to November 28

because mother’s counsel had just received the two psychological evaluations and needed

time to review them. On November 28, the court continued the hearing to January 9,

2013, because extensive testimony was anticipated and the court was engaged in trial on

another matter. On January 9, 2013, the hearing was continued to February 7.


                                             5
       The contested jurisdiction and disposition hearing was finally held on February 7,

2013. Mother did not contest jurisdiction, so the juvenile court found true the allegation

in the petition and declared the child to be a dependent child under the amended petition.

       The court heard first from Dr. Ryan, who administered a psychological evaluation

to mother on October 1, 2012 to determine whether she would benefit from reunification

services. Dr. Ryan testified that mother completed all tests that he administered to her,

but that she was “resistive.” He concluded that the possibility of mother becoming and

remaining compliant with her medication was “remote.”

       Dr. Suiter testified that he conducted a psychological evaluation of mother, also on

October 1, 2012, to determine whether she would benefit from reunification services. Dr.

Suiter administered a test to mother, but could not score it because mother did not

complete the threshold number of questions. Dr. Suiter interviewed mother and

determined that she was “overtly psychotic” and “absolutely out of touch with reality”

and displayed “paranoid delusions” and “considerable confusion.” In addition, mother

was “unwilling to acknowledge that she had any type of mental disorder” or needed

medication. Based on this, Dr. Suiter opined that mother “couldn’t possibly benefit from

services,” although she could benefit from psychotropic medications. Dr. Suiter

expressed under cross-examination that, although mother could possibly benefit from

reunification services if she were forced to take medications, he had concerns about her

“long-term compliance” with medications.




                                             6
       After hearing argument from the parties, the juvenile court denied reunification

services based on subdivisions (b)(2)3 and (b)(11)4 and set the section 366.26 hearing for

June 10, 2013. That same day, mother filed her Notice of Intent to File Writ Petition.

                                        DISCUSSION

       Mother contends the juvenile court’s order denying her reunification services and

setting the section 366.26 hearing is not supported by substantial evidence under either

the mental illness provisions of section 361.5, subdivision (b)(2), or the removal of a

sibling provisions of section 361.5, subdivision (b)(11). As discussed below, substantial

evidence supports the court’s conclusion that mother’s mental illness renders her

incapable of benefitting from reunification services, and on this basis we affirm the

court’s orders.

       Section 361.5, subdivision (b)(2) provides that reunification services need not be

provided to a parent when the court finds, by clear and convincing evidence, that the

parent is suffering from a mental disability that renders him incapable of utilizing those

services . Section 361.5 reflects the Legislature’s recognition that “it may be fruitless to

provide reunification services under certain circumstances.” (In re Rebecca H. (1991)

       3 Section 361.5, subdivision (b)(2), provides that reunification services need not
be offered to a parent if “the parent . . . is suffering from a mental disability . . . that
renders him or her incapable of utilizing those services.”

       4  Section 361.5, subdivision (b)(11), provides that reunification services need not
be offered to a parent if “the parental rights of a parent over any sibling of the child had
been permanently severed, and this parent is the same parent . . . and that, according to
the findings of the court, has not subsequently made a reasonable effort to treat the
problems that led to the removal of the sibling or half sibling of that child from the
parent.”


                                              7
227 Cal.App.3d 825, 837.) A trial court’s order denying reunification services is

reviewed for substantial evidence. (A.A. v. Superior Court (2012) 209 Cal.App.4th 237,

242.)

        Here, Dr. Ryan stated in his report that mother’s mental health issues would

prevent her from benefitting from reunification services. Further, he testified at the

disposition hearing that, although mother could benefit from medication, the probability

of her becoming compliant and staying compliant is “remote.” Dr. Suiter specifically

stated in his report that the nature of mother’s mental illness precluded her from being

able to benefit from any reunification services based on her “mental disorder, her lack of

insight and her resistance to treatment.” Further, he testified at the disposition hearing

that mother could not possibly benefit from reunification services because of her mental

condition and because of her unwillingness to both acknowledge her mental condition

and take medication to address the condition. Both Dr. Suiter and Dr. Ryan concluded

that mother’s mental disorder rendered her utterly incapable of benefitting from

reunification services.

        Mother argues that the psychological evaluation conducted by Dr. Suiter cannot

not be considered substantial evidence supporting the juvenile court’s orders because

mother did not complete the single test she was asked to complete. However, mother

provides no legal authority for her conclusion that this invalidates Dr. Suiter’s

conclusions. Based on Dr. Suiter’s observations of mother’s behavior during the test and

during his interview with her, we find both his conclusion that mother was overtly

psychotic and the juvenile court’s reliance on this conclusion to be reasonable.


                                              8
       Finally, mother points to the testimony of both experts that mother could possibly

benefit from reunification services if she were to take her medication. However, Dr.

Ryan made clear that the possibility of mother complying and remaining compliant was

“remote.” Dr. Suiter also made it clear that, without medication, mother “could not

benefit from services” and that there was “no likelihood . . . that she would voluntarily

take medication.” Thus, the court properly denied father reunification services under

section 361.5, subdivision (b)(2), and we need not address mother’s arguments regarding

subdivision (b)(11).

                                          DISPOSITION

       The petition is denied. The juvenile court’s orders are affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                        P. J.


We concur:

RICHLI
                          J.

MILLER
                          J.




                                             9
