Filed 4/7/14 R.G. v. Superior Court CA5



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

R.G.,
                   Petitioner,
                                                                                       F068746
         v.
                                                                 (Super. Ct. Nos. JP000660 & JP000860)
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.
         R.G., 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 Gomes, Acting P.J., Poochigian, J., and Franson, J.
       R.G. (mother) has two sons, 20-month-old K.B. and 8-month-old A.B., the
subjects of this writ petition. At a contested hearing, the juvenile court denied mother’s
petition under Welfare and Institutions Code section 3881 to return K.B. to her custody,
denied her reunification services as to A.B. and set a section 366.26 hearing as to both
children.
       Mother, in propria persona, seeks an extraordinary writ directing the juvenile court
to return the children to her custody and terminate its dependency jurisdiction or provide
her reunification services. She believes the juvenile court’s orders are based on her
failure to participate in psychotherapy but contends she was ineligible for it at that time.
She informs this court she is participating in psychotherapy and attached supporting
documentation to her petition. We deny the petition.
                      PROCEDURAL AND FACTUAL SUMMARY
       In August 2012, the Merced County Human Services Agency (agency) took then
two-month-old K.B. into protective custody because mother’s home was dirty, she had
untreated depression and was cutting herself and she left K.B. alone in the home on
multiple occasions.
       In March 2013, following a contested dispositional hearing, the juvenile court
denied mother reunification services under section 361.5, subdivision (b)(2) after two
psychologists concluded she had a mental disorder that prevented her from benefitting
from reunification services. Both psychologists diagnosed her as having a borderline
personality disorder. One of the psychologists diagnosed mother with major depression
and characterized her mental disorder as “moderate to severe.” The psychologist
reported that mother engaged in risky behavior that endangered K.B. such as walking


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


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with K.B. for long distances in the middle of the night in dangerous places not knowing
where she was going and taking rides from and residing with strangers. The same
psychologist opined mother was in need of “immediate psychological interventions to
address her untreated, serious, mental health issues.”
       The juvenile court ordered reunification services for K.B.’s father and set the six-
month review hearing for September 2013. K.B. was placed with his paternal
grandparents. Mother did not appeal from the court’s order denying her services.
       In July 2013, mother gave birth to A.B. The agency took him into protective
custody because of mother’s untreated mental illness.
       The maternal grandmother, Ro., testified at the detention hearing in July 2013 she
planned to help mother take care of A.B. by babysitting. She said she lived very close to
mother and could be at her home quickly if mother needed her. Ro. said she was a
registered nurse and worked full time. However, she broke her ankle in early May and
would not return to work until after September.
       The juvenile court agreed not to detain A.B. if mother moved in with her sister,
Sandra, and complied with a safety plan. The safety plan required mother to participate
in services and remain in Sandra’s home and Sandra and Ro. to babysit while mother
participated in services. Ro., Sandra and mother agreed to and signed the safety plan.
       In August 2013, the juvenile court ordered A.B. placed with mother under family
maintenance services. The court set the six-month family maintenance review hearing
for February 2014.
       In September 2013, mother filed a petition under section 388 (section 388 petition)
asking the juvenile court to place K.B. with her under a plan of family maintenance. The
court set a hearing on the section 388 petition in September 2013 to be heard in
conjunction with its six-month review of father’s family reunification services as to K.B.
(combined hearing).

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       The combined hearing was continued to the end of October 2013. Meanwhile, the
agency removed A.B. from mother and filed a supplemental petition (§ 387) after mother
left A.B. alone while waiting for Jonathan, a high school friend, to babysit. The home
where A.B. was left was not Sandra’s home. The agency placed A.B. with a relative.
       Jonathan said he received a phone call from mother stating she left A.B. alone and
needed someone to watch him. Between the phone call and the time it took Jonathan to
walk to mother’s residence, he estimated A.B. was unsupervised for about 20 minutes.
Jonathan said mother needed him to babysit so she could pick up a drug and alcohol
certificate. He walked to her home and found the door unlocked. A.B. was in a car seat
alone in the living room. Jonathan said this was the second time mother called him to
babysit after she had left A.B. alone. Approximately a week before, she sent him a text
message asking him to babysit after she had already left for school. He said he was not
able to babysit. Mother told him she checked on A.B. between classes.
       Mother admitted leaving A.B. alone twice, but claimed it was for no more than
five minutes each time. She first left him alone to go to school but came back five
minutes later because she did not feel right leaving him alone. The second time she
called Jonathan to pick her up because she wanted to get her graduation certificate for
completing the alcohol and drug program. He called and said he was on his way so she
fed and changed A.B. and he fell asleep. She left because it was already 2:30 p.m. She
was a block away when she saw Jonathan on his way to her home.
       The social worker asked mother if she had a history of mental illness. She said
she was suffering from depression and was taking an antidepressant. She said the two
psychological evaluations were incorrect and that she did not have a mental health
diagnosis nor was she being treated for a mental illness.
       Mother’s therapist, Bret Green, said mother was a complex individual in need of
major support. He said she did not live with Sandra and her family was mad at her

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because she allowed a stranger into her parents’ home. Ro. said mother continued to live
with Sandra. Sandra said mother continued to live with her and she and Ro. provided her
transportation and childcare. She said mother had only recently started allowing
Jonathan to babysit A.B. She believed something must have happened between them to
cause Jonathan to lie about A.B. being left alone. She did not understand why mother did
not ask her or their mother to babysit.
       In October 2013, the juvenile court vacated the family maintenance review hearing
scheduled for February 2014.
       The agency recommended the juvenile court deny mother’s section 388 petition
and not return K.B. to her custody. The agency also recommended the court deny her
reunification services as to A.B. The agency opined mother and K.B. were not
significantly bonded and mother’s childlike and impulsive behavior placed the children at
risk for future harm and neglect. The agency also recommended the juvenile court
terminate father’s reunification services as to K.B.
       In January 2014, the juvenile court conducted a contested hearing on the agency’s
recommendations. Mother’s position was the juvenile court should return K.B. and A.B.
to her under family maintenance.
       Ro. testified she knew mother was trying to find a babysitter for A.B. but had no
idea mother was going to leave A.B. alone. She said she was willing to have K.B. and
A.B. placed in her home and to help mother raise them, but would place them in daycare
while she worked rather than leave them in mother’s care.
       Mother testified she visited K.B. once a month and A.B. weekly and the visits
went well. She explained she left A.B. alone because she wanted to get her diploma at
the drug and alcohol program. She was trying to be independent and get a babysitter by
herself.



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       Mother further testified she completed substance abuse and domestic violence
programs and a parenting class and attended Narcotics/Alcoholics Anonymous meetings.
She was not taking medication or participating in psychotherapy but was in the process of
applying for family counseling.
       At the conclusion of the hearing, the juvenile court denied mother’s section 388
petition as to K.B., sustained the supplemental petition as to A.B., denied mother
reunification services as to him because of her mental disability (§ 361.5, subd. (b)(2)),
terminated father’s reunification services as to K.B., and set a section 366.26 hearing as
to both children. This petition ensued.2
                                       DISCUSSION
       Mother contends the juvenile court’s orders resulting in the setting of the section
366.26 hearing must be vacated because they were premised on the faulty notion that she
was resisting psychotherapy. She acknowledges she was not participating in therapy
when the court ruled, but claims it was because therapy was not deemed medically
necessary in her case, not because she was not pursuing it. Mother seeks to prove her
contentions through various documents attached to her writ petition.
       As a preliminary matter, we cannot review the documents related to mother’s
participation in therapy because they were not considered by the juvenile court either
because they were not produced during the pendency of these proceedings or because
they reflect events that occurred after the juvenile court’s ruling in January 2014. (In re
Zeth S. (2003) 31 Cal.4th 396, 405.) Further, even if we reviewed the documentation and
credited mother’s contentions with respect to what they reflect, we would find no error in
the juvenile court’s rulings.



2      Father did not file a writ petition.


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       The juvenile court made two rulings as to mother that resulted in the setting of the
section 366.26 hearing as to K.B. and A.B. First, the court denied mother’s section 388
petition to return K.B. to her custody. 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. (§ 388, subd. (a)(1).) In
order to prevail, the parent must show a change of circumstances has occurred or new
evidence has been obtained and undoing the prior order would be in the best interest of
the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
       Here, the juvenile court denied mother reunification services as to K.B. because
she suffered from a mental disability that prevented her from utilizing reunification
services. Mother sought a new order returning K.B. to her care with family maintenance
services. However, mother failed to show her mental condition had changed─i.e., that
she no longer had a mental disability preventing her from utilizing services.
Consequently, she did not meet her burden of showing changed circumstances under
section 388 and the juvenile court properly denied her petition. Thus, evidence mother
was seeking psychotherapy would not have altered the court’s finding she suffered from a
mental disability or constituted alternate grounds for changed circumstances under
section 388. Under the circumstances, the juvenile court had no choice but to set a
section 366.26 hearing as to K.B. once it terminated father’s reunification services.
       The other juvenile court ruling that advanced these proceedings to a section
366.26 hearing was its denial of reunification services to mother as to A.B. based on her
mental disability. The court’s decision was supported by its prior finding mother suffered
from a mental disability that prevented her from utilizing services. Mother did not
challenge the validity of the psychologists’ opinions underlying the court’s finding,
appeal from its order denying her reunification services as to K.B., or offer new evidence
refuting the psychologists’ opinions. Therefore, she fails to show the juvenile court erred

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in denying her reunification services as to A.B. and setting a section 366.26 hearing as to
him.
       We find no error on this record and deny the petition.
                                     DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




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