Martha B. v. Superior Court

Filed 2/16/06 Martha B. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert Anspach, Judge.

James V. Sorena, for Petitioner.

No appearance for Respondent.

B.C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing.^[1] We will grant the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner and D.R. are the parents of two daughters, C. and D., the subjects of this writ petition. Petitioner suffered birth trauma, which resulted in a disability ultimately characterized as pervasive developmental disorder. She received specialized educational services while in school and relied heavily on her parents for daily functioning. She also relied on D.R., a methamphetamine user, to help her raise their two young daughters.

The instant dependency proceedings arose in April 2004, after D.R., while under the influence of methamphetamine and hallucinating, cut the legs and arms of then four-year-old C. and two-year-old D. with a knife to extract the cockroaches he believed were under their skin. Petitioner held the children on her lap while D.R. cut them.

The Kern County Department of Human Services (department) removed the children and filed dependency petitions on their behalf. The court declared the children dependents of the court and ordered petitioner to undergo a psychological evaluation to determine her ability to participate in reunification services. The children were placed in a licensed foster home.

Petitioner was evaluated by a clinical psychologist who diagnosed her as suffering from adjustment disorder with depressed mood, pervasive developmental disorder, borderline intellectual functioning and personality disorder with avoidant, dependent and self-defeating traits. He concluded petitioner could benefit from reunification services but would need a great deal of structure and repetition. He recommended that she receive parenting instruction and abuse and neglect counseling. He also recommended she receive domestic violence counseling and assertiveness training to address her domestic violence and codependency issues, either as part of her one-on-one counseling or through classroom/group training through Kern County Mental Health or the Alliance Against Family Violence. He also concluded petitioner did not then require antidepressant medication but stated she may benefit from medication if her depressive symptoms increased. He also stated petitioner needed in-home assistance and recommended the court refer her for services through Kern Regional Center (KRC).

On July 16, 2004, the court conducted the dispositional hearing and ordered reunification services for both parents. Petitioner was ordered to complete counseling in child neglect, parenting training and domestic violence and to complete an assessment at KRC. The court also ordered weekly supervised visitation.

By the six-month review hearing in November 2004, petitioner had completed parenting training and child neglect counseling and was enrolled in domestic violence counseling. She completed an assessment at KRC but was found ineligible for services. This was not the first time KRC found her ineligible for services. It also found her ineligible in 1997. Petitioner also visited regularly with the children and visits were of good quality.

In light of petitioner's compliance with her case plan, the court continued services at the 6-month review hearing and again at the 12-month review hearing conducted on May 12, 2005. In its report for the 12-month review hearing, the department reported that petitioner's progress was moderate and impeded in part because of her continued dependence on D.R. who was failing in his case plan and from whom she was having difficulty separating. Out of the department's concern for petitioner's deeply entrenched dependence, the court modified petitioner's case plan to include independent counseling and set the 18-month review hearing for October 7, 2005.

On June 14, 2005, petitioner was assessed for independent counseling by Mr. R., a licensed clinical social worker. In a letter dated September 30, 2005, Mr. R. concurred with the psychologist's diagnoses of pervasive development disorder and dependent personality disorder. He also observed what he believed to be a mood disorder. He recommended a program that would include medication management, ongoing psychotherapy, a work program and a case management program either through KRC or Kern County MediCal System of Care. He reported that three months of independent counseling could not adequately address petitioner's chronic symptoms. He also stated his belief that petitioner met the eligibility criteria for KRC and volunteered to advocate for her to obtain services. He further stated that if his recommendations were implemented and petitioner complied, he anticipated that family maintenance was a viable option for petitioner and her children.

Informally, Mr. R. stated that petitioner was highly dependent on others and content with her dependency. He stated that she saw counseling as a means to regain custody of her children and once the children were returned to her custody, she had no intention of continuing with her counseling. He stated petitioner was unfit to parent because of her pathological dependency and her impaired mental development and that she would likely allow D.R. back into the home. Even if she didn't, Mr. R. believed she would duplicate the same pathological scenario with another impaired dysfunctional male partner. These off-the-record observations were expressed to the caseworker in conversations just days prior to the September 30 letter and were reported in the department's 18-month status review dated September 27, 2005, in which the department recommended that the court terminate reunification services for both parents. The department also reported that the caregiver, with whom the children had been placed since May 1, 2004, was committed to adopting them.

The department's recommendation was challenged and litigated at the contested 18-month status review hearing on November 16, 2005. Mr. R. was called to testify on petitioner's behalf. He clarified that he was not qualified to testify as to petitioner's competence to parent her children and denied telling the caseworker that petitioner was unfit to parent her children. He testified that petitioner's dependent personality would require ongoing therapy but that if she complied with therapy and if she received the care and support as recommended in his letter, she could function more independently and parent safely. He continued to advocate for another review of her KRC eligibility and testified he believed there were county services available to petitioner that had not been accessed such as Kern County Mental Health Kern County Mental Health where she would receive case management and assistance with daily living.

Minors' counsel called the caseworker to the stand who testified that a month prior to the hearing, the children were removed from their preadoptive home and placed in another preadoptive home. The caseworker also testified that he was not aware of the services available through Kern County, to which Mr. R. referred during his testimony. He was, however, aware that petitioner's dependent personality was a problem from the beginning of the case.

Following testimony, counsel for petitioner argued that the department, knowing of petitioner's dependent personality from the inception of dependency proceedings, was unreasonable in not providing counseling services in her original case plan. Further, in light of Mr. R.'s testimony that services were available through the county to address petitioner's special needs, counsel argued the court should continue reunification services for her.

Minors' counsel argued in favor of continuing services, stating the children love petitioner and would love to be with her. Minors' counsel also stated that the children were removed from their original preadoptive home a month prior, cared for in a temporary shelter and placed in a new preadoptive home the day before the hearing. However, despite her support for continued services, minors' counsel knew of no legal option but to terminate reunification services. Neither was the juvenile court aware of any legal basis upon which it could continue services. The court stated:

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