Paragraph nine reads: "On March 19, Father admitted to an Agency social worker that he "beat his wife for putting too much oil in the frying pan." He said he was 'crazy and needs help.' He admitted hitting one of the children, presumably M.B., for touching his computer. He admitted he had serious problems and had taken psychotropic medication for depression."

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In re M.B. et al., Persons Coming Under the Juvenile Court Law.
SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
A.B., Defendant and Appellant.

No. A127111.

Court of Appeals of California, First District, Division One.

Filed September 30, 2010.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MARCHIANO, P.J.

Appellant A.B. is the father of two girls, 10-year-old M.B. and four-year-old S.B., who are dependent children of the juvenile court because of Father's physical abuse of the children and their mother. At the dispositional hearing, the court denied Father reunification services and placed the children in the sole custody of their mother, Father's wife N.B. Father contends he was entitled to reunification services. We disagree because the juvenile court was entitled to deny services based on Father's mental disability, as attested to by two mental health experts. Accordingly, we affirm.

I. FACTS

Father was born in Kazakhstan and raised in Russia. He emigrated to the United States and met Mother, an American citizen of Russian ancestry raised by immigrant Russian parents. Father and Mother met when they were both ballet dancers for the Sacramento Ballet. They then founded their own ballet school in Pacifica.

Father and Mother were married in a civil ceremony in February 1997, and in a ceremony in the Russian Orthodox Church in October of that year. M.B. was born in 2000, and S.B. in 2005.

On March 19, 2008, respondent San Mateo County Human Services Agency (Agency) filed twin dependency petitions on behalf of both children against both parents, alleging that Father had committed serious physical harm against both children on February 21, 2008, and that Mother had failed to protect them. (Welf. & Inst. Code, § 300, subds. (a) & (b).)^{[ 1 ]}The detention and jurisdiction reports indicated that on February 21, 2008, Father had become upset at Mother while she was cooking and began to kick her and punch her several times in the head, leaving bruises. The children witnessed this abuse. Mother left for work, leaving the children with Father despite the urgings of M.B., then seven, who said she was afraid of Father and "begged her not to go." Mother returned from work to find that M.B. had a bloody lip. The child reported that Father had slapped her across the mouth for dropping a computer hard drive. M.B. also told Mother that Father had hit two-year-old S.B. several times for crying.

Mother remained in the home, with the children, but did contact her priest the next day. Her priest advised her to contact an attorney. The attorney met with Mother, heard the tale of the abuse, and contacted police.

Police and Agency investigations revealed that Father had begun emotionally abusing Mother soon after they were married, and had been physically, emotionally, and verbally abusing her for years leading up to the February 21 incident. The children had witnessed the repeated abuse. In addition, Father had punched Mother when she was pregnant with S.B. and frequently hit the children on the face and head when he was upset. When two-year-old S.B. would begin to cry, Father would cover her mouth and hit her repeatedly on the head. Father had threatened the lives of Mother and the children on several occasions and Mother believed the threats were genuine and Father was "capable of murdering the family."

On February 26, Father was arrested and incarcerated for corporal injury on a spouse/cohabitant (Pen. Code, § 273.5, subd. (a)) and corporal punishment on a child (Pen. Code, § 273d). In an interview with a police officer that same day, Father admitted the argument on February 21, but denied any physical abuse. He said M.B.'s bloody lip was sustained while skiing and ice skating in Lake Tahoe, Nevada. He then said he did not know how either child sustained her injuries.

On March 19, Father admitted to an Agency social worker that he "beat his wife for putting too much oil in the frying pan." He said he was "crazy and needs help." He admitted hitting one of the children, presumably M.B., for touching his computer. He admitted he had serious problems and had taken psychotropic medication for depression.

The jurisdictional report noted that "Father made several statements that he later contradicted." The report also notes Father claimed he had served in the Russian Army in Afghanistan in 1983 and his amphibious vehicle had been blown up near the Afghanistan-Tajikistan border. Father claimed that six soldiers in the vehicle were killed and he had sustained a head injury. Father never told Mother about this incident, "because he feared that . . . she would view him as being incapacitated." Father claimed he had been taken prisoner and escaped, then suffered from amnesia and was physically disabled to the point where he had to relearn how to walk. But Father claimed that within four years he was hired as a ballet dancer by the Bolshoi Ballet company and travelled the world.^{[ 2 ]}Father also admitted to having a long history of mental illness, including auditory hallucinations, and had sought treatment. He claimed the treatment was inadequate, "probably largely due to his inability to communicate in English, and his reluctance to admit to his problems." He told the social worker he had been feeling dizzy and nauseated. He said he had "lost [his] family." Apparently still a Russian citizen, he also feared deportation to Russia.

The Agency's detention report expresses concern for Mother's failure to protect the children from Father's abuse, but the jurisdictional report notes that Mother was in therapy and was seeking therapy for the children. She had filed for divorce and wanted Father out of her life. Despite its initial concerns about Mother's failure to protect, the Agency concluded that she "has taken appropriate steps to protect herself and her family," including therapy and divorce. The Agency "commended [Mother] for her proactive efforts to obtain therapy services for herself and her two young daughters," and recommended "that she be given full legal and physical custody of the children. . . ."

The jurisdictional hearing was uncontested. Both Mother and Father submitted the issue of jurisdiction on the Agency's reportsMother with a written waiver and Father on an oral representation of counsel.

In anticipation of the court sustaining the petition, Father's counsel asked the juvenile court to order reunification services for her client pursuant to section 361.5, subdivision (a), which provides, subject to certain exceptions set forth in subsequent subdivisions, that "whenever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father . . . ." Counsel argued that the Agency had "not offered any legal basis under [section] 361.5 that would preclude . . . [F]ather from receiving reunification services." Counsel also argued that if the court was going to order reunification services, section 361.5, subdivision (c) required the court to hold a dispositional hearing.

Two exceptions to the requirement for reunification services are relevant here. Section 361.5, subdivision (b)(2) provides that services need not be provided if the court finds by clear and convincing evidence "[t]hat the parent or guardian is suffering 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."^{[ 3 ]} Subdivision (e)(1) of section 361.5 provides that where a parent is incarcerated, the court shall order services unless it determines by clear and convincing evidence that "those services would be detrimental to the child." (The parties refer to exceptions to the reunification services requirement as "bypass provisions.")

Father was present at the jurisdictional hearing, but remained incarcerated on the criminal charges; he also may have been subject to an Immigration and Naturalization Service (INS) hold.

The court sustained the dependency petitions and declared the children dependent children. Without holding a dispositional hearing, the court denied Father reunification services based on the bypass provision of section 361.5, subdivision (e)(1), finding that Father was incarcerated and reunification services would be detrimental to the children. The court granted sole legal and physical custody of the children to Mother.

Father appealed. We concluded that Father was entitled to a contested dispositional hearing prior to any order denying him reunification services or granting sole custody to Mother. Accordingly, we affirmed the sustaining of the dependency petitions, but reversed the orders denying services and granting custody. We remanded the matter for the juvenile court to conduct a contested dispositional hearing. (In re M.B. et al. (Jan. 29, 2009, A121730) [nonpub. opn.].)

II. CONTESTED DISPOSITIONAL HEARING

The juvenile court first convened after our remand on April 23, 2009.^{[ 4 ]} At that time, Father had served his sentence on the criminal charges, but was in INS custody facing deportation proceedings. The court set a dispositional hearing for May 14.

The dispositional report indicated that Mother was receiving considerable family support and was active in the Russian Orthodox Church. She and M.B. were still in therapy, while further therapy for S.B. was no longer necessary. Mother reported that the children were "doing fine without their father." The Agency reported that "[t]he children are safe in the home of their mother." The Agency noted: "This is a family which endured many years of progressively worse domestic violence and chaotic behavior by the father, who had an untreated mental illness. The mother and children lived in a state of constant fear that something they would do might result in another episode of violence." The Agency reported that Mother "has done an admirable job of recovering from the crisis which led to the referral," and "the children are not in danger." The Agency recommended the court award sole legal and physical custody to Mother.

At the dispositional hearing, the Agency and all other parties agreed to a mental health evaluation of Father to see whether the bypass provision of section 361.5, subdivision (b)(2)mental disabilityapplied in this case, thus empowering the court to deny reunification services to Father. County Counsel, counsel for the Agency, expressly cited section 361.5, subdivision (b)(2) to the court. The court granted the request and appointed two mental health experts to examine and evaluate Father. Apart from County Counsel's express invocation of section 361.5, subdivision (b)(2), there is no question the juvenile court was following this provisionthe statute refers to Chapter 2 of Part 4 of Division 12 of the Family Code (see fn. 3, ante) which includes Family Code section 7827, which requires that two mental health experts evaluate a parent facing loss of custody on the ground of mental illness.

For reasons not entirely clear, the juvenile court did not actually appoint the two experts until July 8. On July 20, the Agency filed a motion for reconsideration of the appointment order, claiming that section 16507 "should eliminate the need for the evaluations." Section 16507, subdivision (b) provides that "Family reunification services shall only be provided when a child has been placed in out-of-home care, or is in the care of a previously noncustodial parent under the supervision of the juvenile court." Since the children in this case were to remain with Mother, they were not placed out of the home and were placed with a custodial parent. Thus, the Agency argued there was no need for the two mental health evaluations.

On August 26, Father opposed the motion, arguing he was entitled to reunification services and that section 16507, subdivision (b) did not preclude them.

On August 28, the Agency filed an addendum report, informing the court that one of the two mental health evaluations had already occurred. On August 19, Dr. Edward Duncan examined Father and found that he suffered from posttraumatic stress disorder, alcohol abuse, depressive disorder, and maladaptive personality traits associated with borderline and antisocial personality disorders. Dr. Duncan concluded that Father would not benefit from reunification services, because he "showed little insight into his own psychological makeup, has not accepted his culpability for his abuse of his wife and children, has no understanding of his need for mental-health treatment to prevent future episodes of verbal or physical abuse, has little awareness of the emotional needs and psychological makeup of his children, and did not benefit from service[s] including anger management classes provided during his incarceration." Father also "reported no interest in psychotropic medications or psychological counseling."^{[ 5 ]}The Agency continued to recommend against reunification services, and was looking for a second mental health expert to evaluate Father.

On September 1, the juvenile court denied the motion for reconsideration, but reserved the right to rule at the disposition hearing that section 16507 applied and precluded reunification services.

The disposition hearing was set for September 28. In a new addendum report prepared for that hearing, the Agency noted that Father was still in denial over his physical abuse of Mother and his children, was without empathy for them, and showed no signs of contrition. The Agency also observed that Father had told various contradictory stories to explain his beating Mother on February 21, 2008, from being enraged over her cooking techniques to flashing back and thinking the frying pan was an explosive device. Father "has not given [the Agency] any proof that he is seeking counseling services to help him with his mental illness, nor has he requested any referrals . . . . He seems to believe that he can persuade the Court that he has always been the victim, and that his prior episodes of violence were actually misguided attempts to save his family members' lives. . . . In spite of his wrongdoing and its cruel effects on others, [Father], a master manipulator, consistently tries to portray himself as someone worthy of sympathy rather than rebuke."

The Agency also informed the court that the second mental health evaluation had occurred. On September 9, Dr. Amy T. Watt examined Father and concluded he suffered from posttraumatic stress disorder and personality disorder. She concluded he could benefit from services, but noted his unwillingness to take responsibility for his violent behavior, and his tendency to blame his medication instead. She concluded Father "had the potential to benefit from reunification services," but only if he was willing to undergo psychological treatment and medication. She further concluded that given his "high degree of denial" and his "strong belief" that his medication or other external factors cause his problems, "it is going to take significant effort and time to help him acknowledge his role in what has happened to him." His prognosis to benefit from psychotherapy is "poor." Improvement may "take more than twelve to eighteen months." If Father "is cooperative and . . . motivated to change, the prognosis may improve."

The Agency continued to recommend that Father receive no services and Mother receive sole custody.

The dispositional hearing was continued to December 1. In yet another addendum report, prepared for that hearing, the Agency specifically invoked the mental disability bypass provision, tracking the language of the statute. The Agency recommended: "Pursuant to [s]ection 361.5 . . . reunification services need not be provided to [Father], as the Court finds, by clear and convincing evidence, that: the parent/guardian is suffering [from] a mental disability that renders him/her incapable of utilizing services & mental health professionals indicate that the parent is unlikely to be able to care for the children within the next 12 months. 361.5(b)(2) . . . ."

At the outset of the disposition hearing the juvenile court declared it had "all the addenda, all the reports"including the report just discussed. The Agency social worker and Dr. Watt testified. Father testified he and Mother divorced because "a lot of lies" were made to him. He testified he was in the Russian army, and that Mother's claim that he was not "is, again, lies." He agreed to participate in therapy and medications "[i]f the Court deems it necessary, if the doctors deem it necessary." He denied physically abusing Mother on February 21, 2008, or ever threatening to kill her.

At the outset of closing argument, Father's counsel invoked section 361.5 and argued there was no reason to bypass reunification services under that statute. The children's counsel argued that "this is a clear cut 361.5(B)(1) [sic: (b)(2)] bypass case. The testimony is essentially uncontroverted that [Father] is suffering from a mental disability that renders him incapable of utilizing reunification services." Mother's counsel argued for a bypass of services on the basis of mental disability "in light of the psychological evaluations," but also stated a position "with respect to the code cited earlier" that there was no need to offer services if the children remain with a custodial parent. Presumably, this is an invocation of section 16507. County Counsel, who raised the issue of the applicability of section 16507 in the first place, curiously offered no argument.

The court stated that it was "very troubled by this case." The court found that Father has "serious mental health disorders which have made him not only violent but resistant to change and unable to cope with his past traumas and unable to control the infliction of trauma[] on those around him." The court found Father to be "in total denial" and referring to his courtroom and witness-stand demeanor, to be "a powder keg."

The court was "in fear for this family" even under "the best conditions." Even if Father "were ready, willing, and able" to participate in therapy and other treatment, "the prognosis would be, in my view, grim." "[I] do not believe, in my ten years here as a dependency judge, that I have seen somebody that I am more concerned about as far as posing a security risk to his family because of the mental health issues."

The court ordered the children to be placed in Mother's custody. "[I] have no reason to order reunification services to [F]ather. [¶] I am finding that the mental health evaluations which do comply with 728 [sic] of the Family Code as well as the aforementioned section provide no exception to the denial of services for him." The juvenile court's minute order states: "Court finds that mental health evaluation of the Father provides no exception for denial of services & no services will be provided to Father. . . ."

III. DISCUSSION

Father contends the juvenile court erred by denying him reunification services. As we explain below, the denial of services was justified under the bypass provision of section 361.5, subdivision (b)(2) in light of the mental health evaluations of Father and his poor prognosis for recovery.

We first dispose of what amounts to a sideshow of statutory interpretation. The Agency contends that section 16507, subdivision (b) applies, essentially trumping the requirement of two mental health evaluations set forth in section 361.5, subdivision (b)(2), and independently justifying a denial of services. We need not reach this issue. From the outset, the juvenile court treated this as a case raising the bypass provision of section 361.5, subdivision (b)(2). The court appointed two mental health experts, consistent with the procedures outlined under that statute. The Agency's final dispositional report made it clear that the Agency recommended a bypass of services under the mental disability bypass provision. Father's mental disability was the primary focus of the evidence and argument before the court. And the court's minute order invokes language consistent with section 361.5, subdivision (b)(2): "Court finds that mental health evaluation of the Father provides no exception for denial of services & no services will be provided to Father. . . ."

We conclude that, while there is some slight confusion in the record, there is no reason to conclude the juvenile court relied on any statute other that section 361.5, subdivision (b)(2) to deny reunification services.^{[ 6 ]}The denial of services was proper under the bypass provision. One need only review the facts set forth above to conclude that the evidence more than supports the conclusion that Father is so mentally disabled, and in such a denial of his disability, that he is incapable of utilizing reunification services. Whether or not there is a "presumption" in favor of services, as Father argues, the bypass provision clearly justifies a denial of services and would overcome any presumptionespecially given the persuasive facts of this case.

IV. DISPOSITION

The dispositional findings and orders of the juvenile court are affirmed.

We concur:

Margulies, J.

Banke, J.
1. Subsequent statutory citations are to the Welfare and Institutions Code unless otherwise indicated. Subsequent dates are in 2008 unless and until otherwise indicated.
2. Father's sister, who lives in Russia, doubts Father's story about serving in the military, but confirms that he danced for the Bolshoi Ballet. According to an Agency report, the sister "had no knowledge of her brother ever serving in the military, and said that he had always been a ballet dancer. [The sister] stated that it was highly improbable that a talented dancer such as [Father], who had danced with the Bolshoi Ballet at one time, would [ever] have been sent on active duty in the Russian army, even if he had served in the army." According to a subsequent report, Mother confirmed Father was in the armybut Father's sister had told Mother that "as a talented ballet dancer, [Father] was given only light duties . . . . The government would never endanger such an individual by placing him on the front lines."
3. The referenced chapter of the Family Code is a component of Part 4 of Division 12 of that code. Division 12 (Fam. Code, § 7500 et seq.) governs the parent and child relationship. Part 4 (Fam. Code, § 7800 et seq.) governs a child's freedom from parental custody and control. Chapter 2 (Fam. Code, § 7820 et seq.) governs the circumstances under which proceedings may be brought to free a child from parental custody and control.
4. Subsequent dates are in 2009 unless and until otherwise indicated.
5. In his interview with Dr. Duncan, Father continued to deny he physically abused Mother. He described the frying pan incident as a flashback where he thought the pan was an explosive device of the type he had used in the army, and he was simply trying to save Mother by covering her with his body. He also denied physically abusing his children.
6. It is true that the clerk's handwritten notation on the face sheet of the court's December 1 minute order states "[c]ourt finds no services need be offered to Father purs[uant] to 16507(b) W/I." But no such finding appears in the reporter's transcript of the disposition hearing or in the court's minute order. The court's rulings are controlling here.