Karen O. v. Superior Court

Filed 6/22/07 Karen O. v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In a petition for an extraordinary writ pursuant to California Rules of Court rule 8.450, the mother in this juvenile dependency case challenges orders after a contested six-month review hearing terminating reunification services and setting a hearing to select a permanent plan under Welfare and Institutions Code section 366.26.[1] The court found that returning the child to her parents would create a substantial risk of detriment to her safety, protection and physical or emotional well being; that the mother had not made substantive progress on her reunification plan; that there was not a substantial probability that the child would be returned home if further services were offered; and that reasonable services had been provided or offered. The mother contends that these findings were not supported by the evidence. After reviewing the record, we conclude that substantial evidence supports the courts findings. We therefore deny the writ petition.

BACKGROUND

The child in this case was taken into protective custody on March 20, 2006, just a few days after her birth. At the hospital, the mother presented conflicting stories to the social worker about where she lived, who was coming to pick her and the child up, and who was the father of the child. She did not want any fathers name on the birth certificate. She was unemployed, she was unclear about where she was living, and she did not appear to have the necessities to care for a child. Furthermore, the mothers three older children had become dependents of the court in 2002 and she had failed to reunify with them.

A section 300 petition was filed on March 22, 2006, containing allegations under subdivision (b) [Failure to Protect]. The child was ordered detained on March 23, 2006. The childs alleged father requested a paternity test and the court so ordered. The child was placed with her maternal aunt and visitation was ordered for the mother. A psychological evaluation from 2002, when her three older children were removed from her care, indicated a provisional diagnosis of Schizophrenia, Paranoid Type with Prominent Negative Symptoms. The 2002 evaluation stated that the [mothers] emotional instability is currently precluding her from being able to adequately parent her children. She is not able to rationally focus on parenting tasks, is lacking a full appreciation of her current situation, is emotionally volatile, is utilizing poor judgment, and is having difficulty following through with completing the necessary steps to reunify with her children.

The maternal grandmother informed the social worker that the mother may have some type of split personality. The mother had expressed a belief that her memory had been removed at age 18. She often thought people were spying on her. The alleged father acknowledged that the mother needs help, but he felt that she could care for the child. The mother had been admitted to Emergency Psychiatric Services (EPS) at Valley Medical Center in 2003 following a fire at the house where she and the alleged father were living. The father had told others his fear that she might have started the fire that burned the house down. Hospital staff noted a diagnosis of psychotic disorder, possibly substance-induced. The mother was admitted to EPS again in 2005, and was diagnosed with Psychotic Disorder, NOS. A friend said that the mother had been staying with her and she described the mother at the time as delusional and paranoid.

The social worker described the mother as having paranoid thoughts and disorganized and disconnected thoughts. The mother had very limited understanding as to what had happened with her three older children. Court reports showed that she had failed to participate in any court-ordered services, except the psychological evaluation, and that she had failed to attend visits with her children. All three children were placed with the maternal grandmother, and a restraining order had issued ordering the mother to stay away from the children and the maternal grandmothers home. The mother denied ever having any mental health issues. She did not remember participating in the psychological evaluation in 2002. The social worker also reported that the mother and alleged father both had histories of domestic violence with their former spouses.

The jurisdiction and disposition hearing was held on May 30, 2006. The court found true the allegations of the petition as amended, and took jurisdiction of the child. The court found by clear and convincing evidence that the welfare of the child required removal from the mother, and that placement with the alleged father would also be detrimental to the childs well being. The court ordered services for the mother in the form of a parenting without violence class, a program of counseling or therapy to address the mothers mental health issues, random drug testing, a domestic violence assessment, and two psychological evaluations, with by-pass questions. Visitation was ordered for the mother and the alleged father, but no further services were ordered for him until paternity was established.

The mother was referred for two psychological evaluations. Issues to be addressed by the evaluators included an assessment of the mothers capacity to care for and protect the child and meet the childs needs, an assessment of an appropriate treatment plan for the mothers mental health issues, an assessment whether the mother suffered from a mental disability that rendered her unable to care for the child, and if so whether the mother would be capable of utilizing services within the appropriate time frame for reunification.

On July 17, 2006, the alleged father was found to be the childs biological father, and services were ordered for him, including a parenting without violence class, a domestic violence assessment, drug testing, and counseling or psychotherapy addressing issues of codependency and domestic violence. At this same hearing, the maternal aunts motion for de facto parent status was granted.

Dr. James Livingston, Ph.D., a licensed psychologist, evaluated the mother on August 17, 2006. Dr. Livingston wrote that the mother suffered from an impaired sense of reality serious enough to cause ineffective, inappropriate and deviant everyday behavior which is not in keeping with reality demands, and can be functionally disabling. She has great difficulty in recognizing her problems and her limitations, tending instead to see others concerns about her limitations as being unfair, unjustified and ill intended with some mysterious and covert agenda underlying them. Because of this, she excuses, minimizes or outright denies her failures in providing for her children. I therefore do not believe that she is able to adequately care for or protect her daughter. Dr. Livingston believed that the mother needed psychiatric treatment and a trial of medication to determine whether her condition would be responsive. He did not believe this could be determined in less than six months. He further stated his opinion that the mother genuinely does not believe that she has any mental health disorder, or that there was any valid basis for the removal of her sons in the past, or her daughter in the current circumstances. Given her lack of awareness of her disorder, it is my opinion that her disability will prevent her from effectively utilizing such services as psychiatric treatment. He concluded that the mother had a psychotic disorder that made her unable to care for her child, and that it was uncertain as to whether psychiatric treatment would sufficiently reduce her symptoms so that she could adequately care for a child.

On September 7, 2006, the mother was evaluated by William F. Alvarez, Ph.D., a licensed psychologist. Dr. Alvarez had evaluated the mother in 2002. He found her presentation somewhat more stable than when he had previously evaluated her, but found there remained evidence of an underlying major mental disorder as reflected in her paranoia, thought blockage and inappropriate affect. He gave her a provisional diagnosis of Schizophrenia, Paranoid Type with Prominent Negative Symptoms. Dr. Alvarez found that the mothers mental disorder interferes with her ability to provide consistent parenting of her child. He found she was currently unable to care for and control her child adequately. The treatment most likely to be effective, in Dr. Alvarezs opinion, would include inpatient observation in order to clarify her diagnosis and evaluate the appropriate psychopharmacological options. He found that the mothers denial of her mental health needs . . . renders her incapable of appropriately utilizing reunification efforts. Further, it was unlikely that she would benefit sufficiently from reunification services within the prescribed time frames to be able to adequately parent and care for her child.

In the report for the regularly scheduled six-month review hearing, set for November 15, 2006, the social worker recommended further services for the mother and father. The mother had been prescribed Prozac by her family doctor and was taking this medication. The mother and father were living together and the father worked full time. They had participated in some aspects of their reunification plan and were regularly visiting with the child.

At the hearing on November 15, 2006, counsel for the child asked for a contested six-month hearing to contest the agencys recommendation for six more months of services, contending that there was no substantial probability the child could be returned to the parents in that time period. The matter was set for settlement conference, discovery and trial.

On December 19, 2006, the social services agency filed a section 388 petition, seeking to modify existing orders and to by-pass further reunification services under section 361.5, subdivision (b)(2), on the basis that the mother was suffering from a mental disability that rendered her incapable of utilizing reunification services. In the alternative, the agency recommended that services be terminated because the six-month reunification period for a child under three years old had run and there was no substantial probability that the child could safely be returned home if services were extended. ( 361.5, subd. (a)(3); 366.21, subd. (e).)

The contested six-month hearing and the hearing on the section 388 petition were combined and the trial began on February 26, 2007. At the end of trial, on April 2, 2007, the agency withdrew its section 388 petition. On April 3, 2007, the court made findings supporting its order terminating reunification services.

TRIAL TESTIMONY

Social Worker Sharon Wolbach

Social worker Wolbach was the case worker. She was deemed an expert in the area of risk assessment of dependent children and provision of child welfare services with regard to family reunification. She testified that in a recent interview with the mother, the mother had told her the childs removal was due to a case of mistaken identity because the mothers older sister L. was diagnosed as schizophrenic and the authorities must have confused her with her sister. As to the mothers other three children, the mother did not understand why she was not allowed to visit them. Wolbach described an incident of domestic violence in May of 2006 where the mother had scratched and hit the father and he had called the police. As a result of this incident the mother was arrested, became involved with Mental Health Court and was referred to a therapist named Susan Sidel.

Sidel referred the mother to Dr. Andrew Klompus, a psychiatrist with the dual-diagnosis court, and Dr. Klompus had evaluated the mother and had prescribed anti-psychotic medication. The mother refused to take the medication and sought another opinion. The mother had started seeing a psychiatrist at Kaiser, Dr. John Chen, who had prescribed Prozac for depression, and she had also started seeing a psychologist, Carol Johnson-Schroetlin, both in December of 2006.

In her conversations with the mother, Wolbach told the mother that she had been diagnosed with schizophrenia and encouraged the mother to comply with the recommended psychiatric treatment. The mother denied having schizophrenia and said she was taking Prozac, which was helping her to feel better. Wolbach testified that she was concerned about the mothers ability to reunify because she did not seem to have a grasp of what the issues were and why her children had been removed from her care.

Wolbach testified that the mother and father had been in a relationship together for approximately five years. She had reviewed the fathers case plan with him. The father had been compliant with participating in the classes, had gotten good evaluations, and had done a drug assessment. He said he thought the mother was doing better since she had started taking Prozac. He believed that she would be a good mother. He also stated that he would be able to adequately protect the child if she were returned home. He felt that the child should not have been removed from the mother at birth. Wolbach did not believe that the father fully understood the seriousness of the mothers diagnosed illness and felt it would be difficult for him to protect the child. She urged the father to participate in counseling, in order to more fully understand the mothers diagnosis and the nature of his attachment to her. The father made arrangements to start individual counseling in January of 2007, and was reportedly making good progress. Wolbach was concerned that the father acknowledge and understand the serious nature of the mothers mental illness so that he could develop a plan to keep a child safe. She was also concerned that because he worked full time he would be leaving the child in the mothers care.

Wolbach testified that a domestic violence assessment received by the agency in November of 2006 indicated that the mother was a victim of domestic violence both by her former husband and by the father of this child. The father was also involved in reported incidents of domestic violence with his former spouse. Further, the mother was also a perpetrator of domestic violence, based on the incident where she scratched and hit the father and he called the police in May of 2006. The father reported that there had been a total of four incidents of domestic violence between him and the mother.

On the second day of trial, Wolbach reported that she had just learned of a recent arrest of the mother for obtaining a prescription medication (Vicodin) with a false prescription.

Social Worker Glenda Diseth

Glenda Diseth, a licensed clinical social worker working for the district attorneys office, was deemed a qualified expert in the areas of risk assessment for dependent children, evaluating progress in reunification plans, and the appropriateness of a treatment plan. In December of 2006, she prepared a clinical assessment for this case, reviewing the relevant documentation since the commencement of the dependency. She also spoke with social worker Wolbach, with members of law enforcement agencies, and with the caretaker for the child. She researched diagnoses for mental illness, and reviewed the mothers and fathers criminal histories.

Diseth recommended terminating reunification services for both the mother and father. She did not believe that the parents could make substantial progress on their plans within the time allowed by law for reunification with a child under the age of three. In her opinion, the record of the case indicated that the mother suffered from a significant mental illness and that she was not complying with recommended treatment. Without treatment, it was impossible to assess whether the mothers condition would improve so that she would be able to safely reunify with her child. In regard to the father, she believed the record showed that he did not grasp the severity of the mothers illness although he was concerned and tried to get help for her. He tended to minimize the risks posed by the mothers illness, describing instances of bizarre behavior on the mothers part, but then insisting that she could parent the child. Also, the parents had a history of a volatile relationship characterized by incidents of domestic violence.

Diseth had concerns that if the mothers psychotic disorder remained untreated, this could affect the mothers ability to perceive and recognize the needs of a child ahead of her own needs, and to effectively interact with health care providers for the child.

As to the mothers case plan, Diseth testified that the plan was appropriate and that the mother had not met the crucial elements of the plan, in particular complying with recommended treatment for schizophrenia and related psychotic symptoms. In Diseths opinion, there was not a substantial probability the mother could reunify with her child even if services were continued for another six months. As to the father, she testified that he had made substantial progress in his case plan, but that this had not ameliorated the underlying problem of the mothers untreated psychiatric disorder. Diseth did not believe that the father appreciated the risk the mother would pose if she remained untreated, and she did not believe he could adequately protect the child.

Dr. James Livingston

Dr. Livingston, Ph.D., a licensed psychologist, was qualified as an expert in diagnosis and treatment of mental disorders, assessing the effect of mental disability on the ability to adequately care for a child, assessing the ability to utilize reunification services, and assessing the time necessary to effectively utilize services. He conducted a psychological evaluation of the mother in August of 2006 and concluded that she was suffering from a psychotic disorder. His opinion was that the mother displayed the level of illogicality [and] perceptual distortion that is typically seen in people suffering from schizophrenia. His tests further indicated that she was suffering from a mild to moderate level of severity of clinical depression.

He noted several examples of the mothers impaired sense of reality. She connected her perceived memory loss somehow with her experience with her stepfather losing his memory years before in a care home. As to the recent loss of her child, she implied that several folks had linked up to remove the baby for unexplained reasons. Her landlord worked for social services and she thought he may have been part of the plot to take the child. She said she experienced auditory hallucinations, in the form of murmuring voices at night.

Dr. Livingston opined that the mothers thought disorder would cause her to misread and misunderstand situations. He believed this could affect her ability to put a childs needs ahead of her own and could create a risk to a child. He assigned the mother a global assessment of functioning (GAF) of 35, indicating a major impairment to the individuals ability to function.

When asked about the effectiveness of anti-depressants to treat schizophrenia, Dr. Livingston explained that it is common for a person suffering from a thought disorder such as schizophrenia to also suffer from a mood disorder such as depression. When its not possible to determine whether the thought disorder or mood disorder are primary, we speak of schizoeffective disorder describing a condition in which both a mood and a thought disorder are present. Anti-depressants can be helpful and can raise the level of functioning of a patient who has depression but anti-depressants wont be of assistance in treating a thought disorder. In fact, they can potentiate a psychotic episode. His diagnosis of the mother was that the thought disorder was primary. The only treatment he felt to be successful in clearing the kinds of symptoms the mother was suffering from was anti-psychotic medication.

Dr. Livingston explained that a person having an untreated psychotic disorder, characterized by an impaired sense of reality, was highly unpredictable and could pose a safety risk if the person were caring for a baby. It was his professional opinion that the disorder the mother suffered from was recurrent in nature.

Dr. Andrew Klompus

Dr. Klompus was a psychiatrist who was deemed an expert in diagnosis and treatment (including prescribing medication) of mental and emotional disorders, assessing the effect of mental disability on the ability to adequately care for and control a child, assessing the capacity to utilize reunification services, and assessing the time necessary to effectively utilize services. In his practice, he had worked with over a thousand schizophrenia patients. The mother had been referred to him as a part of the dual-diagnosis mental health treatment court in connection with her conviction for domestic violence against the father in May of 2006. Dr. Klompus reported that before meeting with the mother, the father asked to speak with him and the father expressed concern about the mother because she had been diagnosed with schizophrenia, she was not seeing a psychiatrist, she was not taking her medication, she had been having emotional outbursts, she was being very aggressive, and she thought she heard voices and talked to household appliances from time to time.

Dr. Klompus saw the mother six times from June through November of 2006. In the initial interview, he was struck by her poverty of thought content, which he explained was one of the cardinal symptoms of schizophrenia. There was also evidence of psychosis or a thought disorder in the failure to link thoughts together. He found that her tangential thinking and the loosening of associations was persistent over time. In Dr. Klompuss opinion, the mother had a psychotic disorder and . . . the diagnosis that seemed to fit the best was schizophrenia, paranoid type . . . .

After doing some lab tests to rule out other causes, Dr. Klompus recommended a course of treatment that included anti-psychotic medication. He prescribed Risperdal (Risperidone). The mother said that she did not want to take that kind of medication and she denied having any problem with psychosis. She told Dr. Klompus she understood that if she were diagnosed as psychotic, she would not get her kids. He explained to her that it might in fact help her become a better parent. He gave her a very small dosage to try. She took it three times and then stopped taking it.

Dr. Klompus testified that a person could be schizophrenic and depressed at the same time. But schizophrenia would be the primary diagnosis. An anti-depression medication such as Prozac would not address the schizophrenia. In his last meeting with the mother in November of 2006, after she had been taking Prozac for several months, he noted that her thinking was still tangential and her insight was still poor. Dr. Klompus had rejected a diagnosis of depression early on, because the mother had not presented with symptoms of depression and had not complained of depression.

In regard to the mothers parenting abilities with a diagnosis of untreated schizophrenia, Dr. Klompus testified that her thought disorder and her difficulty mainly with thinking as well as the risk of being aggressive and sort of out of touch with reality that can go along with schizophrenia can impact childrearing in a very negative way. Probably the thing that happens the most is just chaos in the home environment and the difficulty that kids have growing up with that, and having a disorganized parent whos supposed to provide comfort and warmth and care. Since it is a degenerative disorder, it would get worse with time.

Dr. Klompus said that without taking the anti-psychotic medication, it would be very difficult for the mother to understand the complexities of a parenting class, retain the information, or apply any of the lessons.

Susan Sidel

Susan Sidel, a licensed marriage family and child therapist, testified that she worked at the Santa Clara County dual diagnosis court doing psychiatric assessments, diagnoses and referrals. She was deemed an expert in the area of treatment of mental and emotional disorders, and in conducting diagnoses through course of treatment.

Sidel testified that she met the mother and father when the mother was referred to her by the court for an assessment after the mothers domestic violence arrest in May of 2006. She assessed the mother for substance abuse issues as well as mental health issues. She did not think that the mother had an ongoing drug abuse problem presently. She was more concerned about the mothers mental health issues. When interviewing the mother and father together, the father expressed concerns about the mothers peculiar behavior at home, in that she was bothered by electronic devices such as the microwave or the radio or television, and had to have them unplugged. The father was very interested in getting help for the mother. The mother did not admit or deny her behavior, and Sidel did not observe first hand any hallucinations on the part of the mother. However, Sidel observed a very guarded and paranoid thinking, paranoid features and a resistiveness to treatment of medication and . . . a lack of insight and judgment.

Sidel believed that the mother could be helped through medication and treatment. She referred the mother to Dr. Klompus and sat in on several sessions with them in order to provide the mother support. She was in agreement with Dr. Klompuss diagnosis of paranoid schizophrenia. She thought that the mother certainly had elements of underlying depression, but that this was not the main problem. For instance, the mother was extremely preoccupied and exhibited paranoid thinking, believing there was a conspiracy against her among the doctors, the judge and the social workers to keep her from getting her child back. Also, she exhibited tangential thinking, a kind of derailment between the question asked and the answer given. The mother was unwilling to cooperate in Dr. Klompuss recommended treatment of anti-psychotic medication. She insisted that it was her sister L. who was schizophrenic and that she was not. The mother eventually decided to get her own doctors to get a second opinion.

In regard to the mothers ability to care for her child, Sidel was concerned that the mother lacked insight and judgment, and that she was not acknowledging what was really going on in her mind and in her daily life. She felt the mother was constantly fighting this disease process. She was concerned that the mothers internal process and paranoid thinking would interfere with her ability to be aware of the needs of a child. The mother seemed to have little understanding as to why the child had been removed from her care. She told Sidel it was because she did not have a car seat. She then explained that the hospital must have mistaken her for her sister.

Dr. John Greene

Dr. Greene, a board-certified psychiatrist, was deemed an expert in evaluating psychiatric illnesses and mental disorders, evaluating how such people can function in society and their ability to reunify with their children or care for their children, and determining the appropriate treatment for such individuals. Dr. Greene was retained to evaluate the mother and determine a diagnosis.

Dr. Greene explained that people with mood disorders like depressive disorder, as well as people who abuse substances, can often show symptoms of schizophrenia. Schizophrenia itself, however, is a more serious condition; it is a debilitating and long standing illness. People who are schizophrenic cannot function long term without anti-psychotic medication. Dr. Greene evaluated the mother in several meetings with her in February of 2007. He also administered psychological testing. He did not find any evidence of schizophrenia. It was his opinion that the mother did not suffer from schizophrenia, schizoaffective disorder, schizophrenia paranoid type, or psychotic disorder. She did not report any of the symptoms of schizophrenia, including delusions, hallucinations, disorganized speech, disorganized behavior or impairment of logical thinking. His psychological test results indicated the mother showed paranoia with depressive features.

Dr. Greene determined that the mother had a major depressive disorder, without psychotic features, and that the depression was in partial remission due to treatment with anti-depression medication. He believed that any thought blockage, tangential thinking or confused thinking were likely related to the diagnosis of depression, since her symptoms lessened after she began treatment for depression. Dr. Greene found the mothers speech pattern to be consistently normal and did not observe any disorganized behavior. In fact he found her highly organized. He gave her a GAF score of 70, indicating a relatively high ability to function. He believed that the reason she had a higher GAF score than when she was previously evaluated was because she was now being effectively treated with Prozac. Dr. Greene noted that other mental health professionals who had evaluated the mother had concluded that she suffered from depression. He agreed with these opinions and believed that the mother was receiving appropriate treatment.

Dr. Greene disagreed with the evaluators who found that the mother had schizophrenia or a psychotic disorder. In his opinion, that diagnosis was not supported by any evidence of the classic symptoms of schizophrenia, especially the presence of delusions and hallucinations. Moreover, the other evaluators did not consider and rule out major depressive disorder as a diagnosis. Dr. Greene also talked with the father, who told him that the mother never reported any hallucinations or delusions, which are necessary to a diagnosis of schizophrenia.

In evaluating whether the mother was a risk to herself or others, Dr. Greene believed that there were several risk factors to be considered, including whether she was using drugs, and whether she was motivated in treating her depression. He did not believe she was a high risk to be left alone with her infant child.

Dr. Carol Johnson-Schroetlin

Carol Johnson-Schroetlin, Ph.D., a psychologist, was deemed an expert in determining psychological services needed by a patient, evaluation of a patients psychological status, and parent-child relationships. She testified that the mother was referred to her through the countys victim/witness program. She evaluated the mother for post-traumatic stress disorder, in connection with the domestic violence suffered in the course of the mothers relationship with her previous husband. Johnson-Schroetlin started seeing the mother in December of 2006, and had seen her for a total of nine sessions. Her impression was that the mother was struggling with depression and grief related to the loss of her children. She felt the mother was making some progress dealing with her depression. Johnson-Schroetlin never observed any delusions, hallucinations, or tangential thinking and never considered that the mother might be schizophrenic. It was her impression that the mother did not have a psychotic disorder. She did note some paranoid features, which she believed were not uncommon when a mother has experienced the trauma of having the authorities remove ones children. Johnson-Schroetlin did not review the records from EPS. She did not administer any psychological tests. She was not assessing the mother for a psychiatric evaluation. She gave the mother a GAF score of 52.

Dr. William Alvarez

Dr. Alvarez, Ph.D., a licensed psychologist, was deemed an expert in assessing mental capacity or disorder, assessing the effect of mental disability on the ability to adequately care for a child, assessing the capacity to utilize reunification resources within the statutory time frame, and assessing the time necessary to effectively utilize services. Dr. Alvarez evaluated the mother in 2002, in connection with the dependency proceedings for her three older children, and evaluated her again in September of 2006. He said he believed this gave him a useful historical perspective, from which to assess the mothers progress, or lack thereof, and her continuing symptoms, and also to test his previous diagnosis.

He explained that the mother presented with a very complex clinical picture, given the range of cognitive, affective and delusional features . . . . He believed all of these factors demonstrated that a form of psychosis was evident. This could indicate a mood disorder, such as depression, with psychotic features, or it could be induced by substance abuse issues. From psychological testing, from the mothers presentation, and from historical information, he found that there was a major psychotic disorder, that there were major mood disorders underlying the psychotic disorder, that there were basic cognitive dysfunctions underlying that as well, [and] that her emotions were variable, from being very agitated to being very lethargic. He found the mother exhibited delusional behavior.

As to delusional behavior, Dr. Alvarez relied on information from the maternal grandmother, who reported that the mother first began experiencing paranoid symptoms in her 20s. She thought there were people on the roof of her house and that people were out to get her. The grandmother thought this might be connected to methamphetamine abuse. Later in the mothers life, around 2002, she appeared to be suffering some kind of breakdown. She was unfocussed and inattentive to her children and exhibited drastic mood swings, erratic behavior and increasing volatility.

Dr. Alvarez also relied on the EPS reports. When the mother was admitted to EPS in 2003, following the house fire, the hospital reporter indicated the mother was not oriented to place, exhibited illogical and fragmented thinking, and expressed delusional thoughts regarding conspiracies against her, having something to do with stock in IBM and Hitachi. She was diagnosed at that time with an unspecified psychotic disorder. The reporter wrote that her behavior was paranoid, delusional, bizarre. She was unclear about what had started the fire, and claimed that other people started it to get us out of the neighborhood. She talked in circles. She thought the phones were bugged. In July of 2005, she was again admitted to EPS by her friend Barbara, who reported that the mother was paranoid and delusional and talks about nonsensical things. Again, she was diagnosed at EPS with a psychotic disorder.

In regard to cognitive dysfunction, Dr. Alvarez explained that the mothers actual thought process would often just stop in the middle of a sentence. In his opinion this form of thought blockage is one of the forms that is considered in reaching a schizophrenic diagnosis. As to inappropriate affect, Dr. Alvarez explained that in filling out the psychological testing questions, the mother was observed giggling to herself and mumbling.

Dr. Alvarez was asked to evaluate whether the mother could in fact be suffering from major depression, triggered by the traumatic life events that she had experienced in recent years. He explained that stressors in life can bring out major depression but can also activate a schizophrenic disorder. He said that an added consideration in this case was that there was genetic loading for schizophrenia in the mothers family, in that a biological sister had been diagnosed with the disease. He said that in order to disentangle the mothers complex clinical picture, a clinician would need to evaluate her over a period of time of at least six months to determine what the primary condition was. He felt, however, that the mothers symptoms were more indicative of schizophrenia than depression because her symptoms were recurring over a long period of time, with continued patterns of the instability, continued patterns of delusions, continued patterns of cognitive difficulties, et cetera.

Dr. Alvarez testified that it was important to look at the mothers entire history rather than how she presented in the moment: if you look at collateral sources, if you look at what other people say about people that have known her for years, if you look at what other professionals, social workers say about her, if you look at what other psychiatrists in inpatient setting say about her . . . . its very clear that she has a major mental disorder.

Dr. Alvarez stated that in his opinion the mother would not be able to parent effectively. She would not be able to pick up on cues from her child to understand what her child is trying to indicate. She would be disorganized. She would not be able to follow through on appropriate plans, et cetera. If her affect remains unstable in terms of mood swings and erratic behavior, then were looking at basically instability in terms of the childs world.

In Dr. Alvarezs opinion, treatment for the mother would have to include regular drug tests, in order to rule out substance abuse. She would have to be in ongoing therapy to address some underlying personality issues, and she would also have to be seeing a psychiatrist well trained in looking at schizophrenia dual diagnosis issues. She would have to be monitored to ensure she was compliant with medications. He felt she would not be able to benefit in a meaningful way from services such as a parenting class. He noted her history of engaging strong defenses against accepting things she did not want to accept and disassociating from things she did not want to hear. He felt her emotional functioning interfere[d] with her cognitive learning. Based on his evaluation of the mother and her history of refusing medication, he was concerned that she would not follow through with effective treatment for her mental disorder if she did not personally agree with it.

Dr. Alvarez opined that his diagnosis of the mother was actually quite consistent with the psychological testing done by Dr. Greene, which indicated psychotic trends as being most significant. These tests showed that the mother responded in ways that suggest problems with cognition and/or paranoid or persecutory ideas. The tests also mentioned troubled thinking and unrealistic thoughts and that the mother probably has been or will be overtly psychotic at some time in her life and she may be so now.

The Mother

The mother testified that she and the father had been in a committed relationship since 2002 and that they loved and cared for each other. When she was pregnant with this child, they had been living together in a room rented from friends. The father took her to the hospital and stayed with her the entire time until the night before she and the baby were due to be released, when he went home to get some sleep. Then he got called back to work and was not available to take them home from the hospital the next day. This made her angry and she decided to leave his name off the birth certificate. The hospital worker said she could fill it in later. The mother said her mother and sister both visited her in the hospital. She said they brought gifts of baby things and that she had what she needed at home to take care of the baby. She did not understand why her baby was taken from her.

The mother testified that she and the father intended to raise the child together. She said he provided most of the financial support and that they supported each other emotionally. She saw herself as the person who would be primarily responsible for taking care of the child while the father was at work. The mother said that she and the father had had arguments over blaming each other about the removal of the child. Their argument in May of 2006 that led to a physical altercation was about an alleged infidelity. It started as yelling at each other and turned into pushing and shoving. She acknowledged that she scratched him and hit him in the face.

The mother said she had used drugs in the past, years ago, but acknowledged that she had tested positive for methamphetamine in 2003, when she was admitted to EPS. She said someone had given her something to calm her nerves after the fire and it turned out to test positive for methamphetamine. She was taken to EPS for a 72-hour hold and tried the anti-psychotic medication (Risperdal) that was prescribed, but it made her feel sick and dizzy.

She went back to EPS in 2005 when she was taken by her friend Barbara for evaluation. The mother had been staying with Barbara during a time when the father had been arrested. The mother explained that her mother and sister had talked with Barbara and all of them had decided that she was schizophrenic and needed to be evaluated at EPS.

The mother said that she was very depressed after her daughter was born and then taken away from her. She felt hopeless and afraid. She adamantly denied that she talked to appliances around the house. She said she sometimes talked to herself, just to give herself words of encouragement. She did feel that the people at the county had conspired against her by insisting on a diagnosis of schizophrenia. The mother said that when she tried the anti-psychotic medication that Dr. Klompus prescribed, she felt dizzy and had trouble sleeping. So she stopped taking it. She wanted to get another opinion so she went to her family doctor, Dr. Morris, in August of 2006. Dr. Morris prescribed Prozac for her, which had been effective in the past. Dr. Morris also referred her to a psychiatrist, Dr. Shakir, who recommended that she double the dose she was taking. When she got insurance through Kaiser, she was referred to a psychiatrist at Kaiser, Dr. John Chen, whom she saw once a month. Dr. Chen continued her on the higher dosage of Prozac and agreed with the diagnosis of depression. She also saw a therapist weekly, Carol Johnson-Schroetlin, whom she had been seeing since December of 2006. The mother testified that since she had started the Prozac in August, she felt good and her relationship with the father had improved. She believed she suffered from depression and that Prozac was the appropriate treatment for her. She did not agree with the diagnosis of schizophrenia. But she said that if her treating doctors and therapists determined that she had schizophrenia and needed to take medication, she would do so. She said she talked to her treating psychiatrist, Dr. Chen, about anti-psychotic medication and he did not think that was the proper medication for her.

The Father

The father testified that he and the mother had been together for five years. He met her when he was coaching her sons in Little League. The father worked as a contractor. He owned a 20-acre ranch property in Merced County, where he and the mother had lived before they came to San Jose. The father testified that the fire that burned the house down on the ranch property was started by a water heater exploding. He said that the mother did not start the fire. At one time he had thought she might have started the fire, but this was because that was put into his head by the mothers mother and by her friend Barbara. He had called them after the fire and asked for help with the mother because her behavior was deteriorating. Her friend Barbara suggested he take her to EPS for an evaluation and he did so.

He explained that living with the mother was often frustrating because she couldnt function right. He said he knew that something wasnt right. She slept a lot, and was always sad and crying and was always in her room in the dark and did not do anything around the house. He said he did not understand this at the time but he later realized that she was depressed because she had lost her three children in 2002. He explained that he saw the mother one time talking in front of the television, but it was only once. He said he never told Dr. Klompus that the mother talked to household appliances. When the mother found out she was pregnant she was very happy and was looking forward to having the baby. He wanted to be a father to the baby.

The father testified that when the mothers labor started, they were living together. He took her to the hospital and stayed with her there until the child was born and the following day and night. However, he then had to go attend to business at his ranch in Merced County and he got detained there. He called the mother in the hospital and asked her to get someone else to take her and the baby home. When he found out the authorities had taken the baby away, he was shocked and said that it was cruel. He said they were not homeless at that time and that they were fully prepared to take care of the child. He thought that the mothers sister and mother, who did not like him and never approved of their relationship, had called the hospital and made the statements that resulted in the authorities taking the child.

The father said that on his own initiative he had started taking classes at the National Alliance for Mentally Ill People. The classes were aimed at explaining different mental illnesses and helping families deal with family members who may have mental illness. He had also completed all the parenting classes and felt that he had learned a lot. And he had started individual therapy and was glad that he had been referred to therapy and thought it was making a difference in his life. From what he had been learning in his classes, and what he knew about the mother from living with her over the years, he agreed with the doctors who said she was depressed and he disagreed that she was schizophrenic. In order to find out more about schizophrenia, he talked to people in his classes who were schizophrenic and also contacted the mothers sister L. Comparing their behavior to the mothers, he said the mother was just not like that. After the mother started taking the Prozac, her symptoms improved and he felt she was back to being the woman he had first met. In his opinion, the medication the mother had been taking since August 2006 was working. He believed she would now be fully capable of taking care of her child.

The father testified that he and the mother were living together at the time of trial. But he said that if the court found that mother was schizophrenic, and that it was a risk to the child to place her with the mother, he would insist that he and the mother separate and he would raise the child on his own. He had raised his own child as a single parent and knew how to do this. He would provide day care during the day when he worked. He said he and the mother had talked about this possibility and she agreed. He said he would make sure his daughter maintained her relationship with the mothers side of the family, whether they liked him or not. He wanted his daughter to know both sides of her family. If the court ordered the mother to see certain doctors or take certain medications, he would make sure she did that.

Barbara Guillen

Guillen testified that she had known the mother since they were in grade school together. She said the mother was like a sister to her and they had a very close friendship over the years. She was also very close to the mothers family. Guillen testified that she had seen the mother be the most wonderful mother you can imagine and then she had seen the opposite extreme where shes not focused on the children. She was very concerned about the mother, particularly in recent years since her divorce from her first husband.

Guillen said she remembered an incident where she went to the mothers house when the mother reported seeing lights through her window. The mother thought people were on her roof or were shining laser lights into her house. She thought people were trying to get to her and that they knew what she was doing all the time. Guillen was concerned, and went to spend the night to see for herself. She said she and the mother crouched down together on the carpet like we were going to sneak up on whoever was doing this. She testified that the mother heard things and []saw things that I didnt hear or see. She said the mother heard voices and said people were getting closer, but Guillen did not hear anything. This was some time before 1999.

Guillen said she facilitated the mothers admission to EPS in 2003. She said the father had called her and said that he just could not deal with the mother any more and did not know what to do. He told her he thought the mother had burned his house down because when he got himself out of the house, she was already outside with a bag packed. He was afraid of what she might do, and he wanted her to get help. Guillen told the father to bring mother to EPS and she would meet them there. When they got there, the mother would not get out of the car, so they had security come and escort her inside.

Guillen told about the mother coming to stay with her in 2005. When the mother arrived, she looked tired, dirty and unkempt. She said the father had been arrested and she had no place to go. She had no clothes or money. She said she wanted to get away from the father. She stayed with Guillen for a few weeks. But Guillen did not let her stay there when Guillen went on vacation, because the mother had told her she had a drug problem and Guillen did not trust her to be in the house alone. During the time the mother stayed with Guillen, Guillen was very concerned about her. Their conversations would lead nowhere. She wouldnt make sense . . . she could not complete a thought process . . . She would just go on and on with these words and nothing would make sense. Guillen told her that if she was going to stay there, she needed to get help. Guillen took her to EPS in July of 2005. When the mother was released, Guillen took her to a follow-up appointment, but the mother decided not to continue with the appointments or avail herself of medical help. Guillen was frustrated that the mother refused help and asked the mother to move on.

Guillen took care of the mothers three boys at one time during the previous dependencies and she took them to Clover House for a scheduled visit with the mother. The mother did not show up. When Guillen called her, the mother said that she was not coming because she was not going to be part of the game. She said she did not want to participate in the system.

Corinne Miller

Miller is the mothers sister and the caretaker and de facto parent of the child. She testified that the mother told her and their mother in 1996 or 1997, over a period of two to three weeks, that she believed her house was bugged. She thought the bug was a two-way device because she could hear voices telling her where she was located in the house when she moved around. She also thought the same people were shining lasers into the house to agitate and scare her. The mother said the voices were stronger at night and were stronger at the back of the house. The mother was so insistent about this that finally Miller and the grandmother went over to check out the house. They checked in and around the house and did not find anything. They were left feeling bewildered [and] concerned.

Miller described a situation in 2004 where the father called and wanted help getting the mother to EPS. Miller agreed to drive the mother to EPS, but the father never brought her over. Another time, the mother had come to Millers house during the day, but Miller did not want her to spend the night. She was concerned about protecting her family and her own children from the animosity that [the mother] brought into my home. So they drove around and tried to find a place for the mother to stay. Miller finally talked her into going to EPS, but once they got there, the mother refused to go in and just walked away into the night.

Miller testified that she had concerns about the mothers thinking process. It was difficult to carry on a conversation with her. Her thinking [was] scattered She denied the reality of the boys being taken away from her. She held to the belief that she had not done anything wrong. She gave contradictory information about what was going on. And her moods would swing from screaming and yelling one moment to being pleasant the next.

The mother called her from the hospital the day after the baby was born, and asked her to bring a change of clothes to the hospital. She told Miller that the father was not involved. Miller purchased some baby things and brought some clothes to the hospital. She said her sister seemed very happy. She asked the mother about the father. The mother said he was the father of the child but told Miller that He has made it very clear he will have nothing to do with it. Miller thought her sister was somewhat detached from the baby: she was not engaged in thinking about what the baby needed. Miller was concerned about her sisters plans and asked her sister where she was going to live. The mother said she would go back to where she and the father had been staying. Then she said she was going to buy a house so she could live with her kids. Miller reminded her that she was not allowed to see her boys, but the mother did not even acknowledge this comment. She told Miller that the father was involved in something I cant get involved with. This statement, and the fact that it was uncertain where the mother and child would live, concerned Miller. Miller did not see the father at all while she was at the hospital. The mother told her that the father had just dropped her off there.

Miller had concerns about the mothers ability to parent a little child, including her not being able to follow a thought process, not accepting what was true, and denying responsibility for her own actions. She was also concerned about the instability of the mothers life.

Miller had helped take care of the mothers three boys during the previous dependencies. She described a scheduled visit with them where she took them to Clover House to meet with the mother and called the mother ahead. The mother told Miller: This is stupid. I dont need to have someone watch me talk to my boys. These are my kids. They should be with me. This is all stupid. No, Im not coming. When Miller would try to talk to the mother about the dependency case with the three boys, the mother would say things like Its all lies, fabrications. None of it is true. I didnt do anything wrong. Miller pleaded with her to please comply with the services ordered by the court, and offered to pick her up and take her to classes. The mother responded by denying the situation and saying I dont have to listen to them. Miller felt the mother truly believed she had done nothing wrong.

Miller thought that the mothers mental problems had gotten worse over the last ten years. She was concerned because she was seeing some similarities to their older sister L., who had been diagnosed as schizophrenic and was conserved.

Miller said that the father had called her for help over the years. Particularly after the fire, he was very frustrated. He called Miller and said the mother had burned down his house, that he did not know what she would do, that he could not deal with her any more and that she was ruining his life.

Ardyth Nothwang

Ardyth Nothwang, the maternal grandmother, testified that she remembered a time when her daughter had told her that she heard people talking in her house, on the roof and outside the house. She thought people, possibly the neighbors, had hearing devices and were spying on her and listening to everything she said. The mother was very believable. The grandmother and the mothers sister, Corinne Miller, went over and looked around the house and tried to check the house out for any wires or bugging devices. They did not find anything and felt foolish afterwards.

The grandmother testified that when she would talk to the mother about doing the things that the court had ordered her to do in the previous dependency cases, the mother would say that the grandmother had her mixed up with the older sister L. who had schizophrenia. The mother would say, I am just fine. There is nothing wrong with me. The mother thought that the agency and the court had her records mixed up with her older sisters.

The grandmother described a time when the mother ignored the restraining order against her and would not leave the house. The boys were very upset and the grandmother had to call the police. The grandmother testified that the mother did not want to see her boys when someone was supervising or watching her, but she wanted to come over and visit them by herself, which was always upsetting to them. That is why the social worker recommended the restraining order.

The grandmother testified that in 2003 the father called her after the house had burned. He said he thought the mother had burned his house down. When he got out of the burning house, he found the mother sitting outside with her bag of clothes just watching it burn. He said shes just crazy. He asked the grandmother for help and advice. He was afraid of what the mother might do next. The grandmother told him to take the mother to EPS.

She testified that she saw some similarities between the mother and her older sister who was diagnosed with schizophrenia. She believed the mother suffered from the same disease. When she tried to get help for the mother, the mother insisted she was fine and that there was nothing wrong with her. The grandmother was aware that the mother had taken drugs at various times in her life. The grandmother tried to get her some help with that but the mother said she could stop on her own.

The grandmother had concerns about her daughters ability to take care of the child. She thought the mother intended to be a good mom, but just did not have the attention for it.

THE COURTS FINDINGS

The court observed that the focus of the hearing was primarily on the mothers mental health situation, and that there was considerable testimony from various mental health pr