Filed 8/26/15 E.R. v. Super. Ct. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
E.R., B260638
Petitioner, (Los Angeles County
Super. Ct. No. CK82780)
v.
THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA FOR THE
COUNTY OF LOS ANGELES,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Real Party in Interest.
PURPORTED APPEAL from orders of the Superior Court of Los Angeles
County, treated as petition for writ of mandate. Amy Pellman, Judge. Petition denied.
Lori Siegel, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
William D. Thetford, Principal Deputy County Counsel, for Real Party in Interest.
********
This is an appeal from disposition orders removing S.R., a newborn, from
mother’s custody, denying her reunification services, and setting a hearing to select a
permanent plan pursuant to Welfare and Institutions Code section 366.26. The court
clerk did not give mother the required advisement notifying her of the right to challenge
the setting of the section 366.26 hearing. Accordingly, we construe the purported appeal
from the order setting the section 366.26 hearing as a petition for writ of mandate.
(Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 259.)
Mother, who did not attend the disposition hearing, contends the court abused its
discretion in denying the motion of her counsel to continue the hearing. Mother also
contends there is no substantial evidence to support the court’s order removing S.R. from
her custody, and the court failed to consider alternatives to removal. She also contends
there is no substantial evidence to support the court’s finding the Los Angeles County
Department of Children and Family Services (Department) made reasonable efforts to
provide family reunification services before the disposition hearing. Finally, she
contends the court abused its discretion by denying her reunification services at the
disposition hearing. We find no merit in any of mother’s arguments. We deny the
petition for writ of mandate and affirm the orders.
BACKGROUND
On the day S.R. was born, in June 2014, the Department received a referral that
mother had given birth to him, and that she had severe untreated mental health issues that
led to the removal of an older child and mother’s loss of custody of that child. S.R. was
on a hospital hold until he was detained and placed in foster care. In its petition, the
Department gave notice that it may ask the court to order no reunification services
pursuant to Welfare and Institutions Code section 361.5.
Mother had previously given birth to twins. N.C. survived but the other twin was
stillborn. Mother’s ensuing depression led to the detention of N.C. In that case, the court
sustained allegations concerning mother’s debilitating mental health issues and her failure
to take prescribed psychotropic medication. The court ordered reunification services, but
mother failed to reunify with N.C. Dependency jurisdiction over N.C. terminated with
2
orders granting physical and legal custody to N.C.’s father, with mother to have
monitored visits.
S.R. has a different father, who is not a party to this appeal.
On July 21, 2014, at the jurisdiction hearing in this case, mother pled no contest to
allegations that she “has a history of mental and emotional problems including affective
disorder, depression, bipolar disorder, suicide ideation and suicide attempts,” which
render “the mother . . . unable to provide regular care of [S.R.]. On prior occasions, the
mother was involuntarily hospitalized for the evaluation and treatment of her psychiatric
condition. [S.R.’s] sibling, [N.C.], was a prior dependent of the Juvenile Court due to the
mother’s mental health issues. Mother’s unresolved mental health issues endanger[]
[S.R.’s] health and safety and place[] [S.R.] at risk of harm.”
We describe in further detail below, in our discussion of mother’s claim that the
court abused its discretion by denying her reunification services, the evidence in support
of these undisputed facts.
After sustaining the allegations of the petition, the court continued the disposition
hearing to September 16, 2014, and ordered an Evidence Code section 730 evaluation of
mother to be completed by Dr. Nancy Kaser-Boyd, at the request of mother’s counsel.
On September 8, 2014, Dr. Kaser-Boyd sent a letter to the court by facsimile stating that
mother was scheduled for an evaluation in Dr. Kaser-Boyd’s office on September 5,
2014, but she failed to show up for her appointment.
In a last minute information for the court, the Department advised the court that
mother had not seen S.R. since July 30, 2014, and she had canceled visits scheduled for
August 16 and August 23. The social worker and the foster parent had been unable to get
in touch with mother. When they called mother’s phone number, they heard recordings
stating, on separate occasions, the number was disconnected, and it could not receive
incoming messages. The social worker went to the home of maternal grandmother, with
whom mother had said she planned to live if S.R. were returned to her custody.
Grandmother said mother had moved out and was not communicating with her. Mother
3
called the social worker on September 2, saying her sister had “kicked her out of the
family home.” Mother provided a new address.
Mother was not present at the disposition hearing, and her counsel offered no
explanation for her absence. Mother’s counsel told the court, “[M]y office has spoken
with [mother] about her appointments [sic] and she stated that Dr. Kaser-Boyd’s office
has contacted her, asked her a few questions, but that she never received a call back. So
I’m just not sure if there is lack of communication or what exactly is going on, but I
would request that this matter be continued for another opportunity for my client to
contact and. . . .” The court interrupted counsel to state the disposition hearing had
already been continued once, and the court denied a further continuance.
The detention report, the jurisdiction/disposition report, and the last minute
information for the court were admitted into evidence without objection. No witness was
called to testify. Counsel proceeded by way of argument. The court ordered no family
reunification services for mother pursuant to Welfare and Institutions Code section 361.5,
subdivision (b)(10) and set a hearing to select a permanent plan pursuant to
section 366.26. Mother appealed.
DISCUSSION
1. The Court Did Not Abuse Its Discretion by Denying the Motion to Continue
the Disposition Hearing.
“The juvenile court may continue a dependency hearing at the request of a parent
for good cause and only for the time shown to be necessary. ([Welf. & Inst. Code,]
§ 352, subd. (a); Cal Rules of Court, rule 1422(a)(2).) Courts have interpreted this policy
to be an express discouragement of continuances. (See, e.g., In re Emily L. (1989)
212 Cal.App.3d 734, 743.) The court’s denial of a request for continuance will not be
overturned on appeal absent an abuse of discretion. (See In re Angela R. (1989)
212 Cal.App.3d 257, 265-266.) Discretion is abused when a decision is arbitrary,
capricious or patently absurd and results in a manifest miscarriage of justice. (People v.
Franco (1994) 24 Cal.App.4th 1528, 1543.)” (In re Karla C. (2003) 113 Cal.App.4th
166, 179-180 (Karla C.).)
4
Karla C. is instructive in considering mother’s claim. In Karla C., a six-week-old
infant was taken into protective custody when police investigated a report of domestic
violence, and the mother explained the violence occurred during a several-day
methamphetamine binge with the alleged father. The detention hearing was held on
February 4, 2003. The court ordered the alleged father to appear for a paternity test on
February 7, but he missed the appointment. On February 25, the court ordered the
alleged father to appear the following day for paternity testing, which he did. On
March 13, mother submitted to jurisdiction and disposition as recommended by the
agency. The alleged father requested a continuance so the court could receive the results
of the paternity testing. The agency opposed the request, arguing the results would not be
available for several more weeks. The trial court denied the request for a continuance.
(Karla C., supra, 113 Cal.App.4th at p. 172.)
The Court of Appeal found no abuse of discretion, reasoning as follows:
“A disposition hearing must be conducted within 60 days of the detention hearing.
([Welf. & Inst. Code,] § 352, subd. (b).) On March 13 when the court denied [alleged
father’s] request for a continuance, the evidence was that the paternity test results would
not be available for several more weeks, or well past the 60-day limit of section 352,
subdivision (b). Under the circumstances, the court did not abuse its discretion by
proceeding without the test results. We are unpersuaded by [alleged father’s] assertion
the test results actually became available within 50 or 57 days of the mandatory cut-off
date, as we evaluate the court’s reasonableness as of the time it made its decision.
“We also reject [alleged father’s] contention he was not given ‘any meaningful
opportunity to perfect his paternity status.’ On February 4, the court made a timely
paternity inquiry and promptly ordered paternity testing to take place on February 7.
[Alleged father] did not show up for the testing, and there is no suggestion he brought
this to the court’s attention until February 25, when the court ordered him to undergo
testing the following day. Thus, [alleged father], and not the court, caused the delay.”
(Karla C., supra, 113 Cal.App.4th at p. 180.)
5
Likewise, here, mother has not demonstrated the court abused its discretion. The
detention hearing in this case was held on June 24, 2014. The adjudication hearing was
held on July 21, 2014. Mother waived her right to a hearing, after her counsel and the
court explained her rights, and the court found the waiver was knowing and intelligent.
At mother’s request, the disposition hearing was continued to September 16, 2014, to
give her a chance to be evaluated by Dr. Kaser-Boyd. Mother did not show up for her
appointment. Mother’s counsel speculated there may have been a lack of communication
between mother and Dr. Kaser-Boyd’s office staff, but readily acknowledged she did not
know “what exactly is going on.” Assuming a “lack of communication” between mother
and Dr. Kaser-Boyd accounted for mother’s failure to keep her appointment for the
Evidence Code section 730 evaluation, the court did not abuse its discretion in finding
that was not good cause for a continuance. As Karla C. reminds us, 60 days from
detention is the “mandatory cut-off date” for the disposition hearing, “unless the court
finds that there are exceptional circumstances requiring such a continuance.” (Karla C.,
supra, 113 Cal.App.4th at pp. 214-215; see also Welf. & Inst. Code, § 352, subd. (b).)
The mandatory cut-off date for the disposition hearing in this case was August 25, 2014
(as the 60th day fell on a Saturday). At mother’s request, the court continued the
disposition once, to September 16, 2014, 84 days after detention.
The court did so to accommodate mother, although the court did not need an
Evidence Code section 730 evaluation for purposes of deciding whether to remove S.R.
from mother’s custody or whether to offer mother reunification services pursuant to
Welfare and Institutions Code section 361.5, subdivision (b)(10). Indeed, the Evidence
Code section 730 evaluation was irrelevant to the issues (1) whether the court previously
terminated reunification services for S.R.’s half sibling, N.C., because mother failed to
reunify with N.C. after she was removed from mother’s custody, and (2) whether mother
made reasonable efforts to treat the problems that led to N.C.’s removal. Mother offered
no evidence to explain her failure to appear for her Evidence Code section 730
evaluation, leaving her counsel to speculate there was a “lack of communication.”
Mother offered no evidence she had rescheduled, or tried to reschedule, her appointment.
6
Indeed, mother did not even show up for the disposition hearing. Mother’s own conduct
was the sole reason for the absence of an Evidence Code section 730 evaluation, and no
exceptional circumstances justified a further continuance of the disposition hearing.
Under the circumstances, we cannot find the court abused its discretion by denying a
further continuance.
2. Substantial Evidence Supported the Order Removing S.R. From Mother’s
Custody, and the Court Had No Duty to Consider Alternatives to Removal.
We find baffling mother’s argument that there was “no evidence mother
endangered [S.R.],” and “no evidence of any current mental health concern which
prohibited Mother’s care of her son.” We need not repeat in full the sustained allegations
of the petition, to which mother pled no contest. We need not repeat in full the facts
summarized above that were described with great detail in the Department’s reports that
were received into evidence without objection. To briefly summarize, it was undisputed
that mother had severely debilitating, unresolved mental health issues that endangered
S.R.’s health and safety and placed S.R. at risk of harm. Mother points to the evidence
that she received prenatal care, nursed S.R. in the hospital, and when interviewed by a
social worker in the hospital, “said she felt good and loved her baby” and that she would
“do anything” to get her baby back. But the substantial weight of the evidence, and the
uncontested allegations of the petition, establish S.R. could not be safely returned to
mother.
Likewise, we find no basis for mother’s argument that the court was obligated to
consider at the disposition hearing whether there were reasonable alternatives to removal
of S.R. from mother’s custody. The Department correctly points out that Welfare and
Institutions Code section 361, subdivision (c)(1), which defines and limits the
circumstances under which a child may be removed from a parent’s custody, does not
require the court to consider whether the parent has received services before removal.
Mother’s argument is a red herring.
7
3. The Department Had No Duty to Provide Reasonable Reunification
Services Before the Disposition Hearing.
Equally baffling is mother’s argument the court erred in finding at the disposition
hearing that the Department had provided reasonable services to mother. We find the
contention baffling, first, because the court made no such finding. Mother cites to page 4
of the reporter’s transcript of the disposition hearing. Nowhere on page 4, or at any other
time during the hearing, did the court find the Department had provided reasonable
services to mother. The reporter’s transcript on page 4 reflects that, among other findings
and orders, the court found the Department made reasonable efforts to prevent and
eliminate the need for the child’s removal. We presume it is that finding which mother
mischaracterizes as a finding concerning reasonable services. It is not.
We also find the argument baffling because Welfare and Institutions Code
section 361.5, subdivision (b)(10), the authority for the court’s decision to deny mother
reunification services after removing S.R. from her custody, does not require the court to
consider whether a parent previously received services. This argument is another red
herring.
4. The Court Did Not Abuse Its Discretion by Denying Mother Reunification
Services Under Welfare and Institutions Code Section 361.5,
Subdivision (b)(10).
Generally, parents whose children are removed from their custody receive
reunification services in an attempt to eliminate the conditions that led to loss of custody
and facilitate reunification of parents and children. (In re Baby Boy H. (1998)
63 Cal.App.4th 470, 478.) There are some circumstances, however, in which the
Legislature has recognized “that it may be fruitless to provide reunification services.”
(Ibid.) Subdivision (b) of Welfare and Institutions Code section 361.5 sets forth these
circumstances in 15 statutory exceptions. “Once it is determined one of the situations
outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a
legislative assumption that offering services would be an unwise use of governmental
resources.” (Baby Boy H., at p. 478.)
8
Under Welfare and Institutions Code section 361.5, subdivision (b)(10),
reunification services need not be provided when (1) the court terminated reunification
services for any sibling (including half siblings) of the child at issue because the parent
failed to reunify with the sibling after he or she had been removed from the parent, and
(2) the parent has not made reasonable efforts to treat the problems that led to the
sibling’s removal. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, 98.) We
review an order bypassing reunification services for substantial evidence. (Id. at p. 96.)
Even when clear and convincing evidence is required below, we review the record only
for substantial evidence in support of the order, bearing in mind the heightened standard
of proof. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) “In making this
determination, we recognize that all conflicts are to be resolved in favor of the prevailing
party and that issues of fact and credibility are questions for the trier of fact. [Citations.]
The reviewing court may not reweigh the evidence when assessing the sufficiency of the
evidence.” (Ibid.)
Mother does not dispute the court terminated reunification services for S.R.’s half
sibling, N.C., because mother failed to reunify with N.C. after she was removed from
mother’s custody. Nor does mother contend she made reasonable efforts to treat the
problems that led to N.C.’s removal. She makes no claim there was no substantial
evidence to support the court’s findings that mother “failed to reunify with a sibling or
half sibling, and she has not subsequently made reasonable efforts to treat the problems
[that] led to the removal of the sibling or half sibling.”
Indeed, the record contains overwhelming evidence that for most of her life,
mother has suffered severe mental health issues that required treatment, yet mother
remained in denial that she needed therapy or medication. Although mother did not
contest the jurisdiction findings that she “has a history of mental and emotional problems
including affective disorder, depression, bipolar disorder, suicide ideation and suicide
attempts,” which render “the mother . . . unable to provide regular care of [S.R.],” she
consistently told the Department’s social workers that she felt “fine” and “good;” that she
did not know what her mental health diagnosis was; that she had not sought counseling
9
after the court terminated jurisdiction over her first child; and that she had never been
prescribed psychotropic medication. The jurisdiction and disposition report contains the
following:
“During the prior case, mother was reported to have recurring suicidal thoughts
and ideation, and has attempted to commit suicide on two prior occasions. During the
prior case, mother did not follow through with mental health treatment and did not make
herself available to receive the services that she needed. During the prior case, it was
reported that mother avoided [an Evidence Code section] 730 evaluation. Mother
eventually had family reunification services terminated in 2012 due to mother’s mental
health issues and lack of compliance. [¶] Additionally, mother has a history of
psychiatric hospitalizations and there was a previous DCFS case that was open to her
family, when she was a minor, due to similar concerns about mother’s mental health
needs not being addressed. The mother is currently [not receiving] mental health services
nor is on psychotropic medication for her reported disorders.” In the investigation in this
case concerning S.R., mother told the social workers she did not complete counseling in
the previous DCFS case “because it was too far,” and later “because she did not have
directions to get to the mental health agency.”
The jurisdiction and disposition report also contains the following:
“Mother reported that she has had numerous psychiatric hospitalizations in the
past and it had occurred so much that she had lost count. Mother reported that she does
not remember much from these hospitalizations except that she was on medication and
she did not like it. Mother informed [investigating social worker] that she does not
remember such things. Mother denied remembering suicide attempts. In the 2010 PRC
Report [the earlier DCFS case involving her first child], mother did recall attempting to
commit suicide on two separate occasions by hanging herself and jumping out of a two-
story window. She reported that she does not remember why she tried to commit suicide,
but she does not think of those things nowadays. During the PRC interview, the mother
denied any DCFS history as a child. However, during the 2010 PRC interview, the
10
mother also remembers that there was an open DCFS case on MGM due to her not
meeting her mental health needs.”
In its assessment and evaluation, the Department concluded: “The mother does
not have the support of the maternal family in seeking mental health treatment as the
maternal grandmother continues to deny the mother’s mental health issues. [¶] Based on
the mother’s history and non-compliance and inability to care for her children, it is likely
that the mother’s mental health will continue to go untreated.”
Mother argues the court abused its discretion by failing to consider she received
prenatal care, exhibited no behavior that alarmed the nurses in the hospital, breastfed S.R.
in the hospital, loved her son, was willing to comply with the Department’s requests and
case plan, and maintained contact with her attorney. As to the latter points, we find no
evidence supports the contention that mother was willing to comply with the
Department’s requests and case plan, and the record reflects only one phone call between
mother and her counsel, which left counsel unable to explain why mother missed her
appointment with Dr. Kaser-Boyd. As for mother’s behavior toward S.R. in the hospital
after his birth, we note that he was transported to a foster home three days after his birth.
We do not minimize the positive behavior mother demonstrated by getting
prenatal care and during the three days with S.R. in the hospital, but find the events
preceding and following the brief period mother spent with S.R. under hospital
supervision support the finding no purpose would be served by offering mother
reunification services. Between July 30, a week after the adjudication hearing, and
September 10, a week before the disposition hearing, mother had not seen S.R. and had
canceled two visits scheduled with the foster mother. Mother moved out of maternal
grandmother’s home and was no longer in touch with her family. There is no evidence
mother has ever made any attempt to receive mental health services at any time since
reunification services were terminated for her older child. Mother would have us reweigh
the evidence and place greater weight on the facts she argues are true, which we cannot
do.
11
5. There Was No Error in Setting the Welfare and Institutions Code
Section 366.26 Hearing.
Having found no merit in any of mother’s arguments, we deny the petition for a
writ of mandate challenging the setting of a hearing to select a permanent plan for S.R.
DISPOSITION
The petition for writ of mandate is denied, and the trial court’s orders are affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
12