Dependency Case Law

In re Joy M. (June 6, 2002) 99 Cal.App.4th 11 [120 Cal.Rptr.2d 714]. Court of Appeal, Fourth District, Division 3.

The juvenile court denied a father reunification services under Welfare and Institutions Code section 361.5(b)(2).

The father had a long history of paranoid schizophrenia, and the mother, who also had a history of mental illness, disappeared when the child was a baby. The father remarried and, years later, got divorced. The father retained custody, although the child was detained soon after the divorce because the father was delusional and neglectful of her child. The child was put in the custody of her stepmother. At the disposition hearing, the father's psychiatrist said he was suffering from a disabling mental illness and was unable to benefit from reunification services. The father's lawyer argued that the evidence to deny reunification services was insufficient because the psychiatrist was not qualified under law to make a recommendation. The court disagreed, declared the child a dependent, and denied the father reunification services or visitation rights. The father appealed, arguing that the court had improperly relied on a psychological evaluation report to deny reunification services and should have allowed monitored phone visits, and that insufficient evidence supported one of the grounds for denial.

The Court of Appeal affirmed the trial court's denial of reunification services. Welfare and Institutions Code section 361.5(b)(2) provides that reunification services need not be provided when the court finds by clear and convincing evidence that the parent or guardian is suffering from a mental disability that renders him or her incapable of utilizing those services. The court may deny reunification services for an allegedly mentally disabled parent or guardian only when "competent evidence from mental health professionals," as defined by Family Code section 7827 is presented. In this case, there was no evidence that the father's psychiatrist was not qualified to provide competent evidence. An expert's competency is not an element of proof related to the merits, so it must be raised and considered in the trial court. The father's lawyer, although arguing that the evidence was insufficient, did not expressly object to the psychiatrist's report. The trial court properly took into account the psychiatrist's report when denying reunification services, since proof of qualifications is unnecessary absent an objection.

The appellate court rejected the father's argument that he should not have been denied monitored phone visits with his child. He argued that because he was allowed monitored written communication, he should have been allowed monitored phone communication. The trial court has broad discretion to deny or limit visitation after custody has been taken from a parent. Because the child expressed fear of her father and wanted no contact with him, and because monitored phone calls would be difficult administratively, the appellate court held that the trial court had not abused its discretion when it denied monitored phone visits. The appellate court did not consider the father's final argument that insufficient evidence supported the court's decision to assume jurisdiction over the child, and affirmed the trial court's decision to deny reunification services.