N.S. v. Superior Court (Alameda County Social Services Agency)

N.S.,

Petitioner,

v.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA,

Respondent;

ALAMEDA COUNTY SOCIAL SERVICES AGENCY,

Real Party in Interest.

No. A148694

(Alameda County

Super. Ct. No. HJ0800915703)

California Courts of Appeal

First Appellate District

Division Four

Filed February 6, 2017

ORDER MODIFYING OPINION AND

DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on December 16, 2016, be modified as follows:

1. On page four, footnote four is modified to read:

⁴ The juvenile court?s rationale was that the Agency alleged N.S. had not participated in services and N.S. contended she could not ?perform and participate? based on a mental condition and thereby tendered the issue.  This was not, however, the context in which the issue arose, and it is clear from the record as a whole, as well as from the briefing presented to this court, that the issue of N.S.?s mental condition related directly and narrowly to the question of whether she met the statutory criterion for eligibility under section 11403, subdivision (b)(5).  It appears the genesis of the court?s statement was counsel?s characterization of the content of the letter as indicating N.S.?s inability to ?participat[e] in any services.?  But the record shows that the proffered letter was ?similar? to a letter from Chan submitted to the juvenile court in September 2015, which stated that N.S. had been receiving services for which she was, and continued to be, eligible under ?criteria five, medical condition.?

2. On page 10, in the first full paragraph after the last sentence ?Although the letter was not entered into evidence, N.S.?s counsel told the court that it was similar to the letter attached to the September 2015 report,? add as footnote six the following footnote, which will require renumbering of all subsequent footnotes:

⁶ As we observed in footnote 4, ante, the manner in which counsel asked the question engendered some confusion.  She asked whether the letter stated that N.S.?s mental condition prevented her from ?participating in any services.?  But the letter---assuming it is similar to Chan?s previous letter, as was represented by N.S.?s counsel---does not state that N.S. is unable to participate in services; it states that N.S. had been receiving services since 2013 for which she was, and is, eligible under section 11403, subdivision (b)(5).  The question of whether N.S. is entitled to continue receiving the benefits of the nonminor dependency provisions if she cannot participate in any services or comply with her case plan due to a mental condition is not before us.  We therefore do not speak to that question, nor do we address whether N.S. might tender the issue of her mental condition if she did assert that position.

     There is no change in the judgment.

     Real Party in Interest?s petition for rehearing is denied.

Dated:           , P.J.