In re Elizabeth R.
Cal.App. 3 Dist.June 27, 199542 Cal.Rptr.2d 200
LPS Conserved Parent with a concurrent dependency case
This dependency case presents a unique fact pattern that few other cases can meet but follows the same logic of in re Daniel B. However, when citing this case counsel should understand the rarity of the circumstances as very few people are LPS conserved and have a dependency case; however, counsel may refer to the logic in the analysis portion.
The appellate court discusses this case within the scope of challenging the sufficiency of social worker reports, adequacy of her legal representation, application of Welfare and Institutions Code at the 18-month review hearing (.22 hearing), how to administer § 388 petitions, and the termination of her parental rights.
The case in chief is whether the juvenile court correctly applied the law in terminating her rights. The reviewing court found that the department failed to take into proper account the mother’s compliance with her program, insight into her problem and bond with her child, thus terminated the mother’s parental rights on incorrect assumptions.
Opposing counsel relies on the “best interests of children” standard when arguing their case; “evidence demonstrates that return would pose a substantial risk of detriment to the child” and the “child's need for stability and security”. Welf & I C §366.22(a)(1) However, the goal of reunification services serves to uphold “the law's strong preference for maintaining the family relationships if at all possible”. Should a parent fail to comply with services, learn from their services, or some other reasoning, the court can order services be terminated and permanency planning begin.
This is not the case in in re Elizabeth R. The respondent mother suffered from severe mental illness and was subject to LPS Conservatorship. She resided in a board and care once the public guardian opined that she could move to an unlocked treatment facility. She visited her children, participated in her case plan, learned from her services, and provided a parental role while maintaining a bond with her child (two prong test Autumn H). She did experience a couple of relapses where she needed to go inpatient, but as soon as she was released, she remained compliant with her medication and attended psychosocial groups. She had a high IQ which contributed to her insight to her illness. It should be noted that she anticipated her relapse and voluntarily checked herself into the hospital.
Despite this opposing counsel cited that because around the termination of services date the mother had just been released from a hospitalization there was risk of detriment due to the mother’s recent decompensation and lack of extra time to supervise the mother. The trial court experimented with several other options to sustain the mother’s visits and services but found that there was no viable option that would be in the best interest of the child’s need for permanency and safety.
Upon reviewing the record the appellate court noted that “Harm to the child cannot be presumed from the mere fact of mental illness of the parent and it is fallacious to assume the children will somehow be 'infected' by the parent. The proper basis for a ruling is expert testimony giving specific examples of the manner in which the mother's behavior has and will adversely affect the child or jeopardize the child's safety”. (In re Jamie M. (1982) 134 Cal. App. 3d 530, 540)
Drawing from the Jamie M court decision, the court concurred that “The mere fact she is labelled a schizophrenic really tells us very little about her behavior and its affect [sic] on her children” and that in the face of mental illness the court should use that as a starting basis but not allow it to be dispositive. The department in part defers to Laurie S. v. Superior Court (1994) which finds that reunification services can be denied a parent pursuant to Welfare and Institutions Code § 361.5 which states that a parent suffering a mental disability that renders him or her incapable of utilizing services may be denied FR. In this case it is not explicitly stated that the department relied on that case; however, in many other cases the department does.
However, as stated earlier the mother did use visitation and compliance with the reunification plan to full capacity and thus her progress should be an indicia of progress toward family preservation. The department also misplaced the mother’s anger when she expressed displeasure and anger toward the foster family’s actions and the department’s failure to provide visits. The department cited her anger as a manifestation of her mental illness rather than “dismay when a seemingly indifferent bureaucracy appears to be railroading his or her children into adoption”.
The department also failed to facilitate visits even though visitation must be made accessible for an incarcerated parent. The appellate court reminded all that a parent in a treatment program is similarly situated to an incarcerated parent and should be granted the same rights to visitation.
Where a child is removed from a parent's custody in a dependency proceeding, the general rule, stated in California Rules of Court, rule 1456(e)(2), is that 'the court shall order visitation between the child and the parent or guardian, to be as frequent as possible, consistent with the well-being of the child.'
Cal.App. 3 Dist.June 27, 199542 Cal.Rptr.2d 200
LPS Conserved Parent with a concurrent dependency case
This dependency case presents a unique fact pattern that few other cases can meet but follows the same logic of in re Daniel B. However, when citing this case counsel should understand the rarity of the circumstances as very few people are LPS conserved and have a dependency case; however, counsel may refer to the logic in the analysis portion.
The appellate court discusses this case within the scope of challenging the sufficiency of social worker reports, adequacy of her legal representation, application of Welfare and Institutions Code at the 18-month review hearing (.22 hearing), how to administer § 388 petitions, and the termination of her parental rights.
The case in chief is whether the juvenile court correctly applied the law in terminating her rights. The reviewing court found that the department failed to take into proper account the mother’s compliance with her program, insight into her problem and bond with her child, thus terminated the mother’s parental rights on incorrect assumptions.
Opposing counsel relies on the “best interests of children” standard when arguing their case; “evidence demonstrates that return would pose a substantial risk of detriment to the child” and the “child's need for stability and security”. Welf & I C §366.22(a)(1) However, the goal of reunification services serves to uphold “the law's strong preference for maintaining the family relationships if at all possible”. Should a parent fail to comply with services, learn from their services, or some other reasoning, the court can order services be terminated and permanency planning begin.
This is not the case in in re Elizabeth R. The respondent mother suffered from severe mental illness and was subject to LPS Conservatorship. She resided in a board and care once the public guardian opined that she could move to an unlocked treatment facility. She visited her children, participated in her case plan, learned from her services, and provided a parental role while maintaining a bond with her child (two prong test Autumn H). She did experience a couple of relapses where she needed to go inpatient, but as soon as she was released, she remained compliant with her medication and attended psychosocial groups. She had a high IQ which contributed to her insight to her illness. It should be noted that she anticipated her relapse and voluntarily checked herself into the hospital.
Despite this opposing counsel cited that because around the termination of services date the mother had just been released from a hospitalization there was risk of detriment due to the mother’s recent decompensation and lack of extra time to supervise the mother. The trial court experimented with several other options to sustain the mother’s visits and services but found that there was no viable option that would be in the best interest of the child’s need for permanency and safety.
Upon reviewing the record the appellate court noted that “Harm to the child cannot be presumed from the mere fact of mental illness of the parent and it is fallacious to assume the children will somehow be 'infected' by the parent. The proper basis for a ruling is expert testimony giving specific examples of the manner in which the mother's behavior has and will adversely affect the child or jeopardize the child's safety”. (In re Jamie M. (1982) 134 Cal. App. 3d 530, 540)
Drawing from the Jamie M court decision, the court concurred that “The mere fact she is labelled a schizophrenic really tells us very little about her behavior and its affect [sic] on her children” and that in the face of mental illness the court should use that as a starting basis but not allow it to be dispositive. The department in part defers to Laurie S. v. Superior Court (1994) which finds that reunification services can be denied a parent pursuant to Welfare and Institutions Code § 361.5 which states that a parent suffering a mental disability that renders him or her incapable of utilizing services may be denied FR. In this case it is not explicitly stated that the department relied on that case; however, in many other cases the department does.
However, as stated earlier the mother did use visitation and compliance with the reunification plan to full capacity and thus her progress should be an indicia of progress toward family preservation. The department also misplaced the mother’s anger when she expressed displeasure and anger toward the foster family’s actions and the department’s failure to provide visits. The department cited her anger as a manifestation of her mental illness rather than “dismay when a seemingly indifferent bureaucracy appears to be railroading his or her children into adoption”.
The department also failed to facilitate visits even though visitation must be made accessible for an incarcerated parent. The appellate court reminded all that a parent in a treatment program is similarly situated to an incarcerated parent and should be granted the same rights to visitation.
Where a child is removed from a parent's custody in a dependency proceeding, the general rule, stated in California Rules of Court, rule 1456(e)(2), is that 'the court shall order visitation between the child and the parent or guardian, to be as frequent as possible, consistent with the well-being of the child.'