Shasta County Department of Social Services v. Rebecca R. (35 Cal. App. 4th 1774, 1995)

Opinion

RAYE, J.

In this case we are called upon to consider the authority of the juvenile court to extend the time parameters ordinarily applicable to dependency proceedings in an unusual circumstance where a parent’s hospitalization for mental illness compromises her ability to participate in reunification services. The mother, Rebecca, was hospitalized for all but five months of the reunification phase of the dependency proceedings. At the 18-month status review hearing the juvenile court ordered family reunification services terminated and the case set for a selection and implementation hearing, despite evidence of the mother’s impeccable record of visitation and efforts to comply with the reunification plan. The order was premised on the court’s erroneous belief that it could not extend the reunification period and was compelled to either terminate reunification services or return the minor children to the mother. We will reverse the judgment terminating the mother’s parental rights and remand to permit the trial court to exercise its discretion under Welfare and Institutions Code section 352 to continue reunification services.

Factual and Procedural Background

As so often occurs in dependency appeals, we are required to piece together the critical facts from years of reports, plans, and evaluations, prepared by a revolving cast of social workers, therapists, and psychiatrists, argued by a revolving cast of lawyers, and reviewed by a revolving cast of judges. Because they are so critical to our disposition of this appeal, we recount the facts in detail.

Rebecca, the youngest of six children, was the “product of a very pathological family system.” Her father was abusive. In her midteens, Rebecca was diagnosed with bipolar disorder and thereafter was treated by numerous psychiatrists, placed on a variety of psychotropic medications, and was hospitalized often. She is extraordinarily intelligent, with an IQ of 134.

In 1986 Rebecca, while hospitalized, met Eugene, who had also been hospitalized for depression, and began a relationship with him. She was 23 years old. They left the hospital and began driving cross-country seeking shelter. Thus began an unstable relationship which over the next five years saw Rebecca give birth to the three children who are the subject of this proceeding.

Unable to take her medication during pregnancy, Rebecca suffered a postpartum psychotic episode soon after each of her daughters was bom. Within a week of Elizabeth’s birth in 1988, Rebecca fled the house with her newborn, exhibiting manic behavior. She was hospitalized involuntarily and Elizabeth was placed in a temporary shelter. Eugene, who was employed as a mechanic, threatened the hospital staff and the social worker.

Cassie was bom on November 8, 1989. Again, within two weeks of the birth, Rebecca suffered another psychotic episode, was hospitalized, and the girls were placed in a shelter. Eugene and Rebecca regained custody but continued their nomadic life-style. During the next three years they were evicted from every home or apartment they had lived in. Aurora was bom on December 13, 1991, during a move to Redding. After the birth, Rebecca checked in with the mental health department but was assured she appeared fine. She was told to return if she had any problems.

She did have problems. Before Aurora was a month old, Eugene, who had contracted hepatitis, left Rebecca by herself with their preschooler, toddler and newborn to attend a demonstration. By then Rebecca also had hepatitis. On January 10, 1992, she accidentally left dinner on the stove as she visited with a neighbor. She called the fire department when she returned to find smoke filling the apartment and Cassie asleep on the floor. She removed all three children from the apartment. Showing signs of another psychotic episode, Rebecca was admitted to Shasta County Mental Health at her request. The children were taken into protective custody and placed in a foster home. Two days later, she was involuntarily committed and a dependency petition was filed. (Welf. & Inst. Code, § 300, subd. (b), failure to protect.) The petition alleged Rebecca suffered a mental illness and the whereabouts of the children’s father was unknown. Neither Rebecca nor Eugene was present at the detention or jurisdictional hearings, though they were each represented by counsel.

At the end of February, Rebecca was moved to a locked board and care facility in Fremont and a temporary conservatorship was established. A reunification plan was prepared in March. Rebecca was required to visit the children weekly, learn nurturing skills, take a parenting class, demonstrate parenting abilities, notify the social worker when released or thereafter when changing her living arrangements, contact the social worker bimonthly, establish a stable living arrangement for six months, obtain counseling, participate in support groups, take medications, and sign releases. Rebecca was assigned a new social worker, Wanda Lamb.

The department asserts Rebecca was shown the reunification plan in June but it was not signed. Rebecca testified the plan was presented to her for the first time in August.

Nevertheless, Rebecca had complied with nearly all the terms of the reunification plan by the six-month status review hearing in September. She maintained contact with Lamb, had regular visits with the girls once she was released from the hospital, was taking her medication and working closely with the mental health department, was involved in an independent living skills program, and had begun a parenting class.

She was given an amended reunification plan in September requiring her to submit to a psychological examination and to keep Eugene out of the house unless and until he completed his plan and was authorized by the department to return. The other terms remained essentially the same as the original plan.

Rebecca continued to work hard to regain custody of her children through the fall of 1992 by complying with the reunification plan. In September she rented an apartment. Visitation was gradually increased to six hours per week and progressed from completely supervised visits at the department’s office to semisupervised visits at Rebecca’s apartment. The girls were happy to see their parents and they all exchanged hugs freely.

Rebecca’s psychological evaluation was performed in November. Described as mentally gifted, Rebecca’s thinking was clear and lucid and her expressive and receptive language skills were quite good. The psychologist opined she possessed good potential to become a relatively normal parenting figure because of her excellent intellectual resources and her general levels of social awareness and perceptiveness. Nevertheless, he believed she would require long term psychotherapy, consistent use of medications, and probably separation from Eugene to maintain stabilization. He foresaw the children eventually returned to her care and custody.

Rebecca suffered considerable stress through the holidays. She was very upset she was not allowed a visit with the girls on either Thanksgiving or Christmas. She was struggling to resolve the dilemma imposed by the department to give up either her husband or her children.

By January Rebecca recognized signs of an impending manic episode. On January 11, 1993, she sought help and voluntarily admitted herself into the hospital. Lamb reported that Rebecca had substantially complied with the reunification plan prior to her hospitalization. She completed parenting classes, maintained an apartment, had a psychological evaluation, and maintained regular visitation with the children, at which time she demonstrated appropriate parenting skills. Lamb had two ongoing concerns: Rebecca’s failure to complete counseling and the presence of Eugene in the home.

Just after Rebecca was hospitalized, Lamb transferred the case to Patricia Maestas and the course of the reunification phase changed abruptly. Within a month, Maestas recommended the termination of reunification services and the setting of a selection and implementation hearing. (Welf. & Inst. Code, § 366.26.) In her 12-month status review report written in February, Maestas also acknowledged substantial compliance with the reunification plan. She wrote that Rebecca and Eugene put a good deal of thought into activities with the girls during their visits, the girls were happy to see their parents, and they all exchanged hugs freely. She was concerned about Rebecca’s reluctance to follow through on counseling, however, and her poor history of staying on a medication regimen.

In March 1993 Rebecca was admitted to Merced Manor, a locked facility, where she participated in five hours of therapy a day, seven days a week. She remained under conservatorship.

At the 12-month status review hearing in April, Maestas testified she had not discussed the counseling component of the reunification plan with Rebecca and she did not know there was an element of the reunification plan requiring Eugene to be out of the house. She did not observe any problems with Eugene’s interaction with the girls during visits, nor did she observe Eugene affect Rebecca adversely.

The court found Rebecca’s emotional and mental stability to have been inconsistent during the previous six months; Eugene did not adequately supervise; and both Rebecca and Eugene did not understand how their mental health affected their ability to parent. Nevertheless, the court found there was a substantial probability the children would be returned home within six months, and therefore, reunification services were continued for an additional six months. The department was ordered to continue the existing visitation.

Rebecca asked for visitation, but was told the hospital was too far. Maestas wrote her 18-month status report in July and once again recommended termination of services and a selection and implementation hearing scheduled. She also asked the court to terminate all visits, although an end to visitation had already been unofficially accomplished; Rebecca had been allowed only 1 visit since January, and that was at the time of the 12-month status review hearing in April. The Maestas report is almost verbatim from the report she had written five months earlier, but with one major exception. In this report, and for the first time, she reports that Elizabeth, who was then five, had difficulty transitioning from her parents to her foster parents and her behavior had become more aggressive. She was then receiving therapy. She explained that Cassie, then three and one-half, and Aurora, then one and one-half, adjusted well to their placement. She stated that the foster parents wanted to adopt the children.

Reunification was unraveling. Rebecca was released from the hospital on August 3, 1993. She immediately contacted Maestas and arranged a visit the following day. Her conservatorship was rescinded. During their first visit in months, Elizabeth and Cassie referred to Aurora as “Brandy.” Rebecca was upset the foster parents had changed her daughter’s name. She was admonished to handle the visits appropriately. She then left for Florida to arrange a more permanent and stable living situation for the children near her family.

She visited again as soon as she returned, bringing crayons and sidewalk chalk. Maestas reported, “It was a nice meeting. The girls seemed very comfortable.”

At the 18-month status review hearing, Rebecca testified she was on lithium to control her bipolar disorder, she planned to stay in therapy, she received Social Security and had been made her own payee, and she wanted to move to either Florida or Maryland to have the support of her father and siblings. Maestas testified Rebecca demonstrated a very good level of parenting ability. She admitted she was unaware of the intensive counseling Rebecca had received at Merced Manor.

Judges, social workers, and attorneys change often in dependency proceedings. The same judge presided at the detention, jurisdictional, and dispositional hearings. By the six-month review, he expressly recognized the progress Rebecca had made. A different judge conducted the 12-month review and a third, Judge William Curie, presided over the 18-month review in September, 1993.

Judge Curie, however, had observed Rebecca in several earlier conservatorship proceedings. His remarks are poignant. He observed that Maestas’s report was written when Rebecca was hospitalized and there was no indication conservatorship would be terminated. Obviously troubled, he remarked, “[Tjhings have changed considerably in the last five weeks. ...['][] [Yjou’ve written the report, but hey, the whole world has changed in these people’s lives since that report was authored.” He criticized the disparity between the written recommendation to discontinue visitation and Maestas’s testimony visitation should be allowed. He observed the tremendous work Rebecca had done in Merced.

The lawyers for Rebecca and Eugene both urged the court to return custody of the children with conditions to protect the children. The department insisted upon termination of services and the scheduling of a selection and implementation hearing. The attorney for the minors, although unwilling to agree to return the children, was bothered by the department’s rush toward adoption. He stated: “The problem I have with this case is that the Department is indicating an anticipated recommendation of an adoption. [<]□ For some reason, that’s not sitting very well with me right now. . . . [H The Code indicates if there’s a benefit to be derived from continuing contact between the parents and the children, then adoption should not be the mode or the avenue we take. ... [*10 I think there’s something that’s telling me there’s a possibility this can turn around for these folks."

The court was on the horns of a dilemma. It was impressed with Rebecca’s progress and optimistic about her ability to sustain her mental health. Yet the department insisted the court had no discretion to accommodate the changed circumstances. Counsel for the department admonished the court, “We’re at the point legally where a return of these children would have to be made to these parents or services will have to be terminated. That’s the point we’re at.” The court responded, “You’re asking for one or the other, period." Counsel admitted, “That’s correct.”

Judge Curie, frustrated by the department’s insistence he had only two choices, A and B, explained, “I’m saying wait a minute. If there’s some point where something has changed enough, then I get a Column C here, logically. I get a Column C if your statement—what does it take me to get a Column C?”

Rebecca’s attorney argued that column C encompassed returning the children under court supervision. But the minors’ attorney disagreed. He, like the department, believed time had run out. He suggested the parents bring a subsequent motion for modification. (Welf. & Inst. Code, § 388.)

The court adopted the minors’ attorney’s reasoning. “I like the kids where they are right now. . . . [H The good part is that as [c]ounsel is very well aware of, I have had the opportunity to see . . . [Rebecca] back in April and August. She is a different woman. I mean an entirely different woman. She has made amazing steps from the conservatorship from Merced.” It ordered a long assessment period and liberal visitation in a controlled atmosphere.

Reunification services were terminated. The case therefore was on a very different track. Contrary to the spirit of the 18-month hearing during which both the court and minors’ counsel remained optimistic about Rebecca’s ability to parent her children, the department once again attempted to limit visitation. The court rejected the department’s request and ordered bimonthly visitation.

After the hearing, Rebecca continued to comply with the terms of the amended reunification plan and to demonstrate the stability of her recovery. In October she began attending services at the Trinity United Methodist Church and continued her persistent attempts to visit her children. Nevertheless, the department or the foster parents canceled four visits at the last minute in October alone. She was terribly disappointed because the visits were often canceled after she had prepared special treats or activities for the children. Worse yet, the department refused to allow her to make up the canceled visits. In the meantime, she met with therapists for 12 clinical hours. She disclosed to the therapists she believed the department intended to seek adoption from the outset. She also admitted she was very upset the foster mother had renamed her daughter.

Rebecca filed a motion pursuant to Welfare and Institutions Code section 388 to modify the earlier order due to a change of circumstances. She alleged the following changes: she had been released from conservatorship, she had attended regular counseling sessions, she was taking her medication as prescribed, she had been made her own payee for Social Security, she had regular visits with her children, and she had secured housing and was paying her own rent.

Her therapists reported she needed long-term therapy and monitoring. They were concerned because she failed to recognize the impact of her mental illness upon the children.

In late November 1993 the department again requested the court to reduce visitation. According to the department’s report, the children’s behavior changed dramatically. Cassie was extremely aggressive and Aurora was hesitant to interact with Eugene and Rebecca; Eugene and Rebecca were seen following the foster parents’ car and Rebecca called Elizabeth’s school.

Rebecca requested a visit on Aurora’s second birthday in December, but the request was denied. Nor was she allowed to see the girls on Christmas. She was forced to consolidate a birthday and Christmas visit and during this visit the adoption worker appeared unannounced to assess the strength of the attachment, if any, between the girls and their parents. Elizabeth brought a bookbag to the visit with the initials of her foster family. Eugene was very upset.

In December, although Rebecca had continued therapy once or twice a week, Maestas recommended termination of parental rights to facilitate adoption. In her report and recommendation for the selection and implementation hearing, she juxtaposed Rebecca’s hospitalizations with the merits of the foster placement. She statistically summarized Rebecca’s contact with the children writing: “From the Dispositional hearing to 18-month Review hearing, there were 117 visits available; 40 visits occurred. From January 1993 to August 1993, a total of four visits took place. Rebecca was conserved and living out of County during this time period.” Maestas reported the children had a positive relationship with their foster parents whom they referred to as “Mama and Daddy.” The foster parents, both high school graduates, had adopted four other children under the age of twelve.

In January 1994 the department recommended a suspension of visitation. In a supplemental report, Maestas wrote that Rebecca had inappropriately told her children not to call her foster parents “Mommy” and “Daddy." She also reported a series of threats made by Eugene.

Again, the cast changed dramatically. Although all the parties petitioned to have Judge Curie finish the case, the selection and implementation hearing was set before a different judge. The lawyers changed as well. Eugene’s counsel was relieved and he proceeded in propria persona. Rebecca, with her father’s financial help, hired private counsel and filed for divorce from Eugene.

In the months preceding the Welfare and Institutions Code section 366.26 hearing, Rebecca continued to visit the girls as much as she was allowed and to obtain further medical, spiritual and community support. She baked chocolate cupcakes for the girls for Valentine’s Day. In February, her doctor discontinued her lithium. She began attending a manic/depressive support group. On one occasion, she was seen driving by the foster parents’ house.

Undaunted by the string of unsuccessful attempts to limit or eliminate Rebecca’s visitation, the department tried again. In March the court denied the department’s application for a restraining order preventing Rebecca from visiting with the children. She was ordered, however, not to divulge the time or location of the visits to Eugene. She was denied her request for additional visitation, including an Easter visit.

Rebecca filed an amended petition pursuant to Welfare and Institutions Code section 388 and by declaration alleged the following additional facts: she was under medical supervision; she had joined additional support groups; she sought employment; she had distanced herself from Eugene and made new friends on her own; she substantially reduced her debt; she secured stable housing; and she attended every visit allowed by the department. She stated that between September 1, 1993, and March 22, 1993, she was only allowed seven or eight of seventeen ordered visits.

Enter another new jurist who candidly remarked, “I have not had as much involvement in this case, as the case has been in the system a long time. I’ve only come into it since January . . . .”

Rebecca had retained new counsel as well. He asked her a series of questions eliciting long narrative responses describing her entire medical history and the minutia involved in all previous proceedings. Expressing obvious frustration, the court stated: “I’m really puzzled, Mr. Farrell [mother’s counsel], as to what we’re doing. I confess to you that I have not . . . had a whole lot of these types of hearings, but I . . . understand the issues. They are pretty narrow at this point. And I have to convey to you that I am —I’ll just be blunt. I don’t think that what you’re doing is of benefit to your client’s best interest. I—if I understand the issues, I’m to look at whether or not it’s the children’s best interest now. ...[<][] [T]he fact that [Rebecca] has had a history of problems with mental health in the past is a factor, but I don’t know if we need to go into the last two years day by day, event by event. I don’t see how that is of any benefit to her.” Thereafter the lawyer’s examination was disjointed at best. Rebecca attempted to explain her mental health problems, her continued attempts at reunification, her love for her children, and her present ability to meet their best interests.

In its written statement of decision, the court wrote, “This County has expended tremendous public resources to try and help Rebecca. . . . [H Eugene and Rebecca did not suddenly develop problems when they came to Shasta County. Together they make for one of the most dysfunctional couples this Court has ever seen. That this family has been disintegrating should have been apparent to family members long ago. We suspect that most of Rebecca’s family was very well aware of the problems and tried to intervene. We are certain that Carla tried. But Rebecca was unable or unwilling to accept their help . . . and despite some recent suggestions to the contrary she still is for the most part denying the level her own mental illness has played in this tragedy. [