R.H. v. Super. Ct.

Filed 2/3/10 R.H. v. Super. Ct. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

INTRODUCTION

R.H. (Mother) petitions this court (Cal. Rules of Court, rules 8.450, 8.452) for extraordinary relief seeking to set aside the order of the Alameda County Juvenile Court setting a permanent plan hearing (Welf. & Inst. Code,  366.26)[1] for March 8, 2010, for her infant daughter, Briana H. Mother contends the section 366.26 hearing should be vacated because her counsel was denied the opportunity to cross-examine the social worker about an August 2009 incident that led to Mothers readmission to the psychiatric ward of John George Psychiatric Hospital. The Alameda County Social Services Agency (Agency) opposes the petition.

FACTS AND PROCEDURAL BACKGROUND

A. Jurisdiction

The juvenile court took jurisdiction over the child on August 26, 2009, following its finding true allegations of the petition filed by the Agency on July 7, 2009, as amended on July 9, 2009. The court sustained allegations under section 300, subdivision (b), that Mother was unable to provide regular care for the child due to Mothers mental illness, in that: Mother has a diagnosis of bipolar disorder and a pattern of going off her medications. She stopped medications during her pregnancy and did not resume taking her medications after the childs birth. On June 29, 2009, she called the police stating she was suicidal and was taken to John George Psychiatric Hospital, where she was placed on a hold under section 5150. Section 5150 provides that an officer may take into custody and place in a 72-hour treatment and evaluation facility any person [who], as a result of mental disorder, is a danger to others, or to himself or herself. The court also sustained an allegation under section 300, subdivision (j) that Mother has two older children who were removed and adopted due to Mothers mental health problems, in that she was not taking her medications, was mentally disorganized, and was put on a 5150 hold from August 21 to September 4, 2007. The court also sustained an allegation that the identity and whereabouts of the father was unknown. ( 300, subd. (g).)

The reports prepared for the jurisdictional hearing advised that this 33-year-old Mothers mental health problems began when she was 15 years old when she thought her period was an earthquake. She been hospitalized many times since then. She stated she had been raped at ages 17 and 20, and that there was domestic violence in her relationship with Joseph P., the father of the childs two half-siblings, with whom she had lived on and off for 15 years. The two half-siblings were removed from Mothers care in 2006 and 2007 due to Mothers mental health problems, and were adopted in 2007 and 2008, respectively. The police report, attached to the Agencys report prepared for the July 8, 2009 detention hearing, detailed the circumstances of the June 29, 2009 incident leading to this childs dependency. When police officers arrived at Mothers apartment, she was holding the child. Mother stated she was bipolar and was off her medications. She also stated she felt like hurting herself today. She rambled on about her father (whom police confirmed was alive and in good health) having passed away, and Jesus had come to take us all away. She would abruptly stop talking and stare at a corner of the wall. Her mood would change from sadness to anger to fright. Mother was transported to John George Psychiatric Hospital and the child was taken to the home of her great grandmother. On July 2, 2009, the child was delivered into protective custody and placed in a foster home. Mother was released from John George Psychiatric Hospital on July 8, 2009, and attended the detention hearing. She admitted she had not taken her medications for the last year. The Agency stated that Mother appeared very fragile and made references to prayer and her faith. She denied that she was suicidal and maintained she had called the police to ask them to escort her father home. The child was detained on July 8, 2009. When child social worker Kim Yancy met with Mother and the child on a supervised visit on July 16, 2009, Mother was heavily medicated, shaky, sluggish and made comments that were out of context. Yancy was concerned that Mother might drop the child while holding her. She also observed that Mother did not hold the child properly and wanted to feed her when she was not hungry.

On July 22, 2009, Mother was again placed on a 5150 hold and did not appear at the jurisdiction hearing set for that day. (The hearing was continued to August 4, and again to August 26, 2009.) On July 22, the police received a 911 call advising that Mother was possibly intoxicated and walking in the middle of the street with cars passing by. The police report stated that Mother appeared disoriented and unaware of her surroundings and kept repeating that she was the chosen one. The hospital report stated she was disorganized, delusional, and responding to internal stimuli. She was agitated and rambled about walking with God and the angels. She believed that the cops were trying to arrest her in order to keep her baby. She was diagnosed with bipolar disorder and cannabis abuse.

Mother was discharged against medical advice on or about August 7, 2009, after an ex-boyfriend, whom she had known for five years, represented that he could move in and provide Mother with 24-hour care. Within 48 hours of her release, Mother was again admitted to John George Psychiatric Hospital on August 9, 2009, after she was found walking in and out of the street, hollering at people and talking to herself. During her hospital intake evaluation, Mother stated that she had used crack. She was described as disheveled and her affect was irritableinterspersed with singing and dancing. She presented with disorganized speech, disorganized behavior, labile affect, delusional content, and an inability to utilize shelter. She was diagnosed with bipolar disorder, psychotic disorder and cocaine abuse.

At the jurisdictional hearing on August 26, 2009, the court found the allegations of the petition true, took jurisdiction over the child, and set a contested disposition hearing for September 8, 2009. Pursuant to court order, a second amended petition was filed by the Agency on September 3, 2009, alleging that Mother continues to go in and out of John George Psychiatric Hospital on 5150s.

B. Disposition

The Agency recommended the child be declared a dependent of the court in out-of-home placement and that reunification services not be offered. Agency reports prepared for the September 8, 2009 disposition hearing disclosed that Mother remained hospitalized at John George Psychiatric Hospital, and that she was expected to be transferred to Villa Fairmont, a sub-acute facility, for one to three months. The court continued the matter for an evidentiary hearing to determine whether a guardian ad litem should be appointed for Mother. The contested disposition hearing was continued to October 7, 2009. Mother was transferred to Villa Fairmont on September 28. She was appointed a guardian ad litem on October 7, 2009.

At the continued disposition hearing on October 20, 2009, the Agency rested following receipt of the records and reports, including psychiatric records from John George Psychiatric Hospital and Villa Fairmont. Social worker Yancy and Mother testified under examination by Mothers counsel.

Yancy testified that the child had not been in ill health when taken into care. Yancy had spoken with Mother once or twice from Villa Fairmont, and more than a dozen times during the dependency proceedings. Mothers counsel stated he was going to go back to jurisdiction. The following examination occurred at that point:

Q. One of the original concerns with the mother being able to take care of the child is whether the mothers delusional or not; is that correct? [] Im going to go back to jurisdiction. First incident that brought this case about was a 5150 by the police; is that correct?

A. Yes.

Q. And that was about my client saying she wanted a police escort for her family home from church; is that correct?

A. Actually, the police report says she was suicidal. The mothers version of events is that she wanted a police escort for her family.

Q. So youre understanding is the mother saidthe mother did not say to you that she was suicidal?

A. She denied being suicidal.

Q. Okay. The version that my client gave you was that she wanted a police escort for the family going home from church; is that correct?

A. Correct.

Q. Would you consider that delusional?

A. No, I wouldnt consider it delusional.

Q. Would you consider it unrealistic?

A. Yes.

Q. At other times shes goneshe went to John George more than one time during your supervision of this case; is that correct?

A. Yes.

Q. How many times did she go back to John George?

A. I am guessing, but I believe she went back three times. And the third time she remained.

Q. How long do youhow long do you believe she remained the third time?

A. I think she went about the first week of August. And then she stayed until having gone to Villa Fairmont, which I think was latelate September.

Q. All right. . . . [] One of the times she went to John George was because she was standing in the middle of traffic; is that correct?

MS. WU [attorney for the Agency]: Your Honor, I object at this time. Jurisdiction has already been taken. We have ample reports in the Courts record regarding the past incidents with the mothers 5150s.

THE COURT: I dont see the relevance of that question. Sustained on relevance grounds. You may proceed.

MR. LOUIE [Mothers counsel]: Your Honor, if I may be heard briefly?

THE COURT: Go ahead.

MR. LOUIE: Again, its the same as before, is that if she is standing out in traffic, it goes to John George. She presents us with a substantial risk of harm to the child, if the child is in her custody. And we are here for disposition to see if the child could be safe or not.

MS. WU: Your Honor

THE COURT: I think weve literally and figuratively crossed that bridge with jurisdictional findings having been made based on the underlying petition. You may proceed with your next question, sir.

MR. LOUIE: Then I just want to make a record here, is that if I cant discuss the jurisdictional issues on how they decided her disposition, then I feel Im being denied her right to confront. It is again the fact situations, her stay at John George, are going to deal with jurisdictional issues.

MS. WU: Your Honor, jurisdictional [sic] was already found. He waived his right to cross-examine the witness regarding jurisdiction when he submitted to jurisdiction. The issue now is with the bypass: Has the mother alleviated or mitigated the mental health issues . . . which caused her to lose the custody of the two prior kids for the same mental health problems that we see her suffering today? Thats the only argument in terms of disposition of whether the mom should be given yet another opportunity for services as to this child.

THE COURT: All right. Ive given you latitude, Mr. Louie, up to this point. I maintain my ruling. You may proceed. Youve made your record, also.

Yancy also testified under cross-examination that she had concerns about whether shes grounded in reality. Thinking the police would escort her family home was not realistic, nor was Mothers failure to understand or acknowledge why shes gone back and forth to John George Psychiatric Hospital. Although so far there had been no direct harm to the baby, [t]he concern is the potential for harm during times when the mother has a break from reality.

During examination by the Agencys attorney, Yancy testified that services had been terminated to Mother for her other two older children, due to the same mental health history of the mother, her bipolar diagnosis and her failure to remain compliant with her psychotropic medications resulting in risks to the children. While Mother had the two older children and during the last seven years or so, she had been repeatedly in and out of psychiatric holds and had many psychiatric admissions. She has had several times when she improved and was moved from John George Psychiatric Hospital to Villa Fairmont on prior psychiatric holds, then transitioned out of Villa Fairmont once she stabilized. However, she had been unable to maintain her stability and compliance with medications. Yancy testified to the Agencys concerns that Mother decompensates regularly, that theres no stability in the community when shes released from the hospital. According to Yancy, the longest period Mother had been compliant with her psychotropic medications from the time Yancy had the case was just a couple of weeks where she was maintained before returning to the psychiatric hospital. Yancy also testified that Mother had been noncompliant with medications not only when pregnant or breastfeeding, but at other times as well.

Mother testified that the incident triggering the childs initial removal was when she asked the police to provide an escort for her dad and brother. She denied being suicidal or telling the police she was suicidal. She went to John George on subsequent 5150s based on the police lying. She testified that she had never needed to be restrained at Villa Fairmont. Upon discharge, she intended to follow her case plan, stay on her medication, keep in touch with the case manager and take whatever classes were in the case plan, get a new psychiatrist, take care of herself and just stay focused. She requested further reunification services to help her reunify with the child. The hearing was again continued to November 19, 2009, where Mother concluded her testimony.

The Agency report prepared for the November 19, 2009 hearing related that Mother continued to do well at Villa Fairmont and was expected to be discharged in December 2009. Medical records, from John George Psychiatric Hospital, dated July 22, 2009, stated that Mother appeared to be gravely disabled by her psychotic symptoms. The medical records also indicated that Mother had a history of marijuana abuse and a history of noncompliance with treatment. Hospital records relating to Mothers August 9, 2009 readmission to John George, stated that she was manic, delusional, disorganized, and displayed odd behavior and poor self-care because of noncompliance with medication. She was also diagnosed with cannabis abuse. The medical records stated that given Mothers inability to function in the community for even a short period of time, she meets the criteria for grave disability and is appropriate for inpatient admission.

At the time Mother was admitted to John George in August 2009, she was being evicted from her apartment. Although she has had many hospitalizations when she has gone off her medication, Mother did not believe that she was symptomatic or that she needed medication. She believed she had been hospitalized because the police want to take her baby and that the ex-boyfriend was taking advantage of her.

At the end of the disposition hearing, the court found clear and convincing evidence that reunification services should be denied to Mother in accordance with section 361.5, subdivision (b)(11), in that her parental rights were terminated as to the half-siblings of the child, and that the child was being removed from the custody of that same parent who had not subsequently made a reasonable effort to treat the problems that led to removal of the half-siblings. The court found the Agency had complied with the case plan by making reasonable efforts to return the child to a safe home and to complete whatever steps necessary to finalize the permanent placement of the child. The court further found the progress of Mother to be minimal, because she has at least composed herself and is on her current psychotropic medication. The court ordered visitation to be arranged once a month, as supervised by the Agency. It found the permanent plan of adoption was appropriate and so ordered a section 366.26 hearing for March 8, 2010.

DISCUSSION

The sole contention raised by Mother here is that her counsel was denied the opportunity to cross-examine the social worker about the August 2009 incident that led to Mothers readmission to the psychiatric ward of John George Psychiatric Hospital.[2] She contends the courts sustaining of opposing counsels relevancy objection denied her constitutional rights to confrontation and cross-examination, under Davis v. Alaska (1974) 415 U.S. 308 and Delaware v. Van Arsdall (1986) 475 U.S. 673.[3] Mother contends that the court prevented her from effectively cross-examining Yancy, thus preventing her from probing for evidence that may have revealed bias on the part of the social worker in the formulation of her dispositional recommendation.

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. . . . Confrontation means more than being allowed to confront the witness physically. . . .  . . . [A] primary interest secured by it is the right of cross-examination. [Citation.] (Davis v. Alaska, supra, 415 U.S. at p. 315.) However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.] (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, People v. Brown (2003) 31 Cal.4th 518, 545-546.)

The court sustained the Agencys relevancy objection to cross-examination of the social worker as to Mothers wandering in traffic incident that was part of the facts underlying the jurisdictional findings. Mothers counsel never indicated that he was probing for bias on the part of the social worker and did not persuade the court that the evidence he sought to elicit was relevant to the issues at the disposition hearing. The record, as we see it, does not provide any hint that probing for possible bias on the part of the social worker was a possible purpose of this line of questioning. To adopt Mothers position would be to transform any sustained objection to a question on cross-examination into a denial of the right to cross-examine and confront. This cannot be.[4]

On this record, Mothers claim fails on the merits. The trial court has wide discretion to determine the relevance of evidence, and we review its decision for abuse of discretion. (People v. Kelly (1992) 1 Cal.4th 495, 523.) The record indicates counsel here merely attempted to cross-examine Yancy about the details of the August 2009 incident that led to Mothers third section 5150 hold and readmission to John George during this dependency. The details of the incident are marginally relevant, if at all, to the issue whether Mother made reasonable efforts to mitigate the problems that led to removal of the childs half-siblingsthe primary issue before the court and its consideration whether reunification services should be offered to Mother or whether a section 366.26 hearing should be set. Moreover, Mother has utterly failed to show how cross-examination of Yancy as to the facts underlying her August 9, 2009 readmission to John George would have produced a significantly different impression of [Yancys] credibility . . . . (People v. Frye, supra, 18Cal.4th at p. 946.)

Were we to conclude the court erred in sustaining the Agencys relevancy objection, we are convinced that any error in this case did not prejudice Mother, whether we assess the effect of the error under the usual standard for assessing prejudice, People v. Watson (1956) 46 Cal.2d 818, 836, or the more rigorous harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, the standard of prejudice applicable to errors of federal constitutional dimension. (See In re Mark A. (2007) 156 Cal.App.4th 1124, 1146 [the weight of authority in California applies the Chapman harmless error standard in juvenile dependency proceedings where the error is of constitutional dimension. [Citations.]].)

It was undisputed that Mothers parental rights over the childs two half-siblings had been permanently severed. The evidence supporting the courts finding that Mother had not subsequently made a reasonable effort to treat the problems leading to removal of the half-siblings of the child was not only substantial, but may be characterized as overwhelming. Mother had ample opportunity to present evidence as to her efforts in overcoming those problems and she did so. The court considered those efforts in finding the extent of Mothers progress toward alleviating or mitigating the causes necessitating placement to be minimal, rather than none. In such circumstances, section 361.5, subdivision (b)(11), allows the court to forego ordering reunification services. Indeed, under section 361.5, subdivision (c), [t]he court shall not order reunification for a parent or guardian described in paragraph . . . (11) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. (Italics added.) In the circumstances presented here, there was no real possibility that the court would have made such finding had the cross-examination of Yancy as to the circumstances underlying Mothers August 9th readmission to John George been allowed.

DISPOSITION

The petition for writ of mandate is denied. Our decision is final as to this court immediately.

_________________________

Kline, P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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[1] All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

[2] In her writ petition, Mother erroneously refers to this incident as her being 5150d on August 22, 2009 for wandering in and out of traffic and yelling at people. There were two such incidents resulting in section 5150 admissionsone on July 22, 2009, and one on August 9, 2009. Mother has conflated the two, but in the context of her argument, she appears to be referring to the August 9 incident. Mothers confusion on this point was likely triggered by the Agencys report of September 8, 2009, relating that the date of her August readmission was August 22, 2009, based on incorrect information obtained from a hospital social worker. Medical records before the court make clear that Mother remained at John George from August 9, 2009 until transitioned to Villa Fairmont on September 28, 2009.

[3] We note these are criminal cases. In Davis v. Alaska, supra, 415 U.S. 308, 312-313, the defendants cross-examination was directed at possible bias deriving from the witnesss probationary status as a juvenile delinquent and possible suspect in the crime. The defendants counsel sought to show that at the same time the witness was assisting the police in identifying defendant, the witness was on probation for burglary. In Delaware v. Van Arsdall, supra, 475 U.S. 673, 676-677, the defendant sought to impeach the prosecution witness about the fact that a public drunkenness charge against him had been dismissed after he agreed to speak with the prosecution about the murder. The Agency, without citing any authority, contends that Mothers reliance on these cases is misplaced because she is not a criminal defendant. We shall assume Mother had a right to confront and cross-examine witnesses in this dependency proceeding.

[4] We are not suggesting that counsel must make an offer of proof of Yancys bias to obtain review of the trial courts evidentiary ruling here. Evidence Code section 354 allows for reversal based on the erroneous exclusion of evidence where [t]he evidence was sought by questions asked during cross-examination or recross-examination. (Evid.Code,  354, subd. (c).) The sustained objection to defendants question on cross-examination preserved his claim of error for appellate review without requiring counsel to make an offer of proof. Questions on cross-examination, however, are largely exploratory, and it is unreasonable to require an offer of proof since counsel often cannot know what pertinent facts may be elicited. [Citation.] Hence no offer of proof is necessary in order to obtain a review of rulings on cross-examination. [Citations.] (Tossman v. Newman (1951) 37Cal.2d 522, 525-526.)