In re Gwendolyn H

Filed 5/18/06 In re Gwendolyn H. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

The juvenile court denied reunification services to appellant Danae H.--mother of minors Gwendolyn and Krystal H. (See Welf. & Inst. Code,^[1] § 361.5, subd. (b)(2).) Danae appeals, contending inter alia that it erred in denying reunification services based on her refusal to comply with its order to undergo two psychological examinations. We agree and thus, reverse the juvenile court order denying reunification services.

I. FACTS

In December 1991, minor Gwendolyn H. was born to Danae H. Within two weeks, Danae was referred to respondent Sonoma County Human Services Department because she was thought to be using drugs. In the first year of Gwendolyn's life, Danae repeatedly came to the department's attention, suspected of neglecting her infant. Danae twice declined offers of family maintenance services.

In December 1992, Danae's daughter Krystal was born. Danae hid the girls from their father, Keith F.^[2] Over the course of many years, the department received repeated referrals of possible child neglect and abandonment because of Danae's drug use, prostitution, and her practice of leaving her minor daughters unsupervised at home at night. Questions about Danae's mental condition were also raised. Danae did not follow through on any referrals for family counseling.

In January 2005,^[3] Krystal found evidence of drug use in Danae's bedroom. The police investigated the matter, but did not remove the children from the mother's care. The social worker found Danae difficult to interview, partly because of her mental health issues. Danae had been diagnosed as a paranoid schizophrenic, but she rejected this diagnosis and refused to take prescribed mental health medications. Danae also referred to law enforcement conspiracies. Gwendolyn and Krystal believed that Danae was prostituting herself. The minors were not getting along well.

In February, the social worker interviewed Danae, who admitted leaving the minors alone unsupervised at night. Gwendolyn and Krystal reported that they were regularly neglected by their mother. They believed that Danae's mental illness, her refusal to take prescribed medication and her drug use were the causes of neglect. They also told the social worker that they found marijuana in Danae's bedroom. Neither child seemed fearful of Danae, but they did not want to live with her. Protective custody was not thought to be warranted at that time.

The social worker concluded that the allegation of child neglect was substantiated. He opined that Danae was unable or unwilling to meet the minors' needs because she was unwilling to confront her mental health issues and was likely using drugs. Because of Danae's unwillingness, the social worker concluded that voluntary services were not appropriate.

On March 2, a social worker visited the home, finding neither minor was in school. Danae knew that she was about to be evicted, but expected to find temporary housing or to take the minors to a shelter. The minors were angry and depressed, but did not appear to be in any immediate physical danger.

On March 8, the family was evicted and Danae became a transient. Gwendolyn and Krystal--then, 13 and 12 years old, respectively--stayed at the home of a family friend for a few days. Danae saw Gwendolyn and Krystal on March 10. On March 11, the friend contacted Santa Rosa police when Danae did not return for her children. Gwendolyn and Krystal were detained by county authorities and placed in a shelter.

On March 14, Danae contacted the department. Hostile, homeless and unemployed, she stated that Gwendolyn and Krystal had been taken by police by mistake. When she met with the social worker later that day, she refused to submit to a drug test. Danae spoke of a conspiracy of people operating against her, including members of the police and fire departments.

On March 15, the department formally petitioned the juvenile court, seeking that both minors be made dependent children. The petition alleged that Danae had abandoned the minors and had failed to provide for their support. It also alleged that Danae was unable to provide regular care for Gwendolyn and Krystal because of mental illness and substance abuse. (See § 300, subds. (b), (g).)

On March 15, the social worker spoke by telephone with Keith F., the alleged father. He opined that Danae was a paranoid schizophrenic. He admitted having used drugs in the past, but he told the social worker that he had been drug-free since 1996. Keith resided in Arkansas with his girlfriend and her three children. Until that time, Gwendolyn and Krystal had had limited contact with him. Since October 2003, Keith had paid family support for the girls. He was then unable to care for them, but expressed an interest in eventually having Gwendolyn and Krystal live with him in Arkansas.

On March 16, the juvenile court approved the detention. Danae was present at the hearing and counsel was appointed to represent her. The juvenile court ordered her to submit to a drug test. On March 24, Danae met with the social worker. She admitted using marijuana, but denied using methamphetamine. She refused to take prescribed psychotropic medication. On March 27, Keith arrived from Arkansas for a five-day stay, seeing Gwendolyn and Krystal every day during his initial visit with them.

Before the jurisdiction hearing, the department recommended that Gwendolyn and Krystal be declared juvenile court dependents, that reunification services be provided to Keith,^[4] but that no reunification services be ordered for Danae. (See § 361.5, subd. (b)(2).) On March 29, the contested jurisdiction hearing began. Danae was ordered to participate in two psychological evaluations. The social worker sent Danae the names and telephone numbers of two psychologists, asking her to make appointments to submit to the court-ordered evaluations. By April 12, Danae had not contacted either of the two psychologists for her court-ordered evaluations. The social worker called Danae again about making these appointments and sent a follow-up letter to her. By April 15, Danae had an appointment to see one of the two psychologists. There is no evidence in the record that she kept this appointment or underwent any psychological evaluation as required by the juvenile court's order. (See Fam. Code, § 7827, subd. (c).)

On April 20, the continued jurisdiction hearing was scheduled, but Danae did not appear and the matter was continued. Danae also failed to appear at the next two hearings in May, which were both continued. At the May 31 hearing, Danae's attorney told the juvenile court that his client had recently been hospitalized and was resting at home after surgery. Her counsel obtained a continuance to allow Danae to testify in this matter. The juvenile court made it clear that if Danae did not appear at the June 9 hearing, it would proceed without her.

On June 9, Danae again failed to appear at the afternoon hearing, although she had been present in court that morning. Her counsel reported that recently, Danae's mental condition had markedly deteriorated. That morning, she had not made sense when talking with counsel, rambling on about spider webs, the fire department and Dianne Feinstein. She refused to come to court, because there was a warrant out for her arrest. Hearing this evidence, the juvenile court found that Danae had voluntarily absented herself from the proceedings.

Danae's attorney asked the court to appoint a guardian ad litem for her client. She also sought a continuance of the hearing until after the guardian ad litem could confer with Danae. The department and counsel for the minors asked that the court complete the contested hearing before deciding whether to appoint a guardian ad litem for Danae. The juvenile court denied Danae's request for a continuance, finding that she had not established good cause for one, regardless of whether a guardian ad litem should be appointed for her. Even if a guardian ad litem was to be appointed for Danae, it ruled that further delay of the hearing would not be in the minors' best interests.

The juvenile court then completed the contested jurisdiction hearing and issued its findings. It found Gwendolyn and Krystal to be dependent children and ruled that reunification services should not be offered to Danae, consistent with the department's recommendation. The juvenile court found that it would not be in the best interests of the minors for Danae to receive reunification services. It also found--based on clear and convincing evidence--that she suffered from a mental disability rendering her incapable of utilizing reunification services. It cited Danae's earlier refusal to participate in the court-ordered psychological evaluations as evidence of the likelihood of her inability to utilize reunification services. Having made these findings, the juvenile court then appointed a guardian ad litem for Danae.

II. REUNIFICATION SERVICES

A. Error

Danae contends inter alia that the juvenile court erred when it ordered that no reunification services be offered to her. Specifically, she argues that the juvenile court failed to meet statutory prerequisites before concluding that she was not entitled to those services based on her refusal to submit to a court-ordered evaluation of her mental condition.

Once a child has been removed from a parent's custody, a juvenile court must order reunification services in most cases in order to implement the law's strong preference for maintaining the family relationship if at all possible. There are narrowly tailored statutory exceptions to this requirement, all subject to proof by clear and convincing evidence. These statutes demonstrate the Legislature's determination that in certain circumstances, reunification services would not serve or protect the best interests of the child. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474; see § 361.5, subd. (a).) This statutory scheme recognizes that it may be fruitless to provide reunification services in certain situations. Once it is determined that one of the circumstances set out in section 361.5, subdivision (b) exists, the general rule favoring reunification is replaced by a legislative assumption that offering reunification services to the parent would be an unwise expenditure of government resources. (In re Baby Boy H., supra, 63 Cal.App.4th at p. 478.)

If the juvenile court finds by clear and convincing evidence that the parent is suffering from a mental disability rendering the parent incapable of utilizing these services, the Legislature has provided that reunification services need not be provided. (See § 361.5, subd. (b)(2).) A mentally disabled parent is one who suffers a mental incapacity or disorder that renders the parent incapable of caring for and controlling the minor children. (Fam. Code, § 7827, subd. (a); see § 361.5, subd. (b)(2) [incorporating definition by reference].) In the context of a Family Code proceeding to declare a minor free of the custody and control of a parent, a court must take evidence from two mental health experts when determining whether a parent is mentally disabled. (Fam. Code, § 7827, subd. (c).) The statute authorizing the denial of reunification services to a mentally disabled parent does not expressly require the juvenile court to consider similar expert opinion evidence, but courts have done so. (See In re C.C. (2003) 111 Cal.App.4th 76, 83-84; see also § 361.5, subd. (b)(2).)

If the parent refuses to comply with a court order to undergo this mental health evaluation, the juvenile court may apply the disentitlement doctrine to deny reunification services to that parent. Under this doctrine, a court may refuse to assist one who refuses to comply with a lawful court order. (In re C.C., supra, 111 Cal.App.4th at p. 84; see MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277.) This doctrine applies in a dependency case if a parent refuses to participate in a court-ordered psychological evaluation, thus making it impossible for a juvenile court to determine whether or not he or she may be able to utilize reunification services. (In re C.C., supra, 111 Cal.App.4th at pp. 84-85; see § 361.5, subd. (b)(2).)

In order to apply the disentitlement doctrine, the court order must be lawful. (See In re C.C., supra, 111 Cal.App.4th at p. 91.) A juvenile court has no authority to order a parent to undergo a psychological evaluation until it exercises its dependency jurisdiction--until after it declares the minors to be dependents of the juvenile court. Only after finding that the minors were at risk and after having assumed jurisdiction over them do a parent's liberty and privacy interests yield to the demonstrated need of child protection. (Ibid.; see In re Crystal J. (1993) 12 Cal.App.4th 407, 412 [parenting as fundamental right implicating due process].) At this stage, when the goal is reunification of the family, expert opinion on a parent's mental illness may be required to determine what services might eliminate the conditions leading to dependency. (In re C.C., supra, 111 Cal.App.4th at p. 91.) Once the minor has been found to come within the jurisdiction of the juvenile court and the juvenile court attempts to reunify the family, evidence of a parent's mental disability may also become relevant to the issue of whether that mental disability renders the parent incapable of utilizing reunification services. (See § 361.5, subd. (b)(2).)

In this matter, the juvenile court ordered Danae to undergo the mental health evaluation in March, before it actually found that Gwendolyn and Krystal came within the juvenile court's jurisdiction in June. As the court could not validly order Danae's psychological evaluations before it found that Gwendolyn and Krystal were dependent children, Danae may not properly be denied reunification services under the disentitlement doctrine for failing to comply with an improper order. (See In re C.C., supra, 111 Cal.App.4th at p. 91.) Thus, the juvenile court erred by relying on Danae's failure to comply with its invalid March order to undergo psychological evaluations.

B. Forfeiture Excused

The department counters that Danae forfeited her right to assert this claim of error on appeal by failing to object in the juvenile court--a contention that she rejects on appeal. In the juvenile court, Danae's counsel did not raise any objection to the court's reliance on the mother's failure to participate in the court-ordered psychological evaluations whether it found clear and convincing evidence that she was incapable of utilizing reunification services.

Ordinarily, an appellate court will not consider a challenge to a dependency case ruling if that challenge pertains to an objection that could have been raised in the juvenile court, but was not made. Although the application of this forfeiture rule is not automatic, we may excuse forfeiture only in cases presenting an important legal issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Certainly, the issue of whether the juvenile court failed to properly establish that reunification services need not be provided to Danae is an important legal issue. After all, the provision of reunification services is the key element of the juvenile dependency process. (See In re Terry H. (1994) 27 Cal.App.4th 1847, 1854 [reunification services protect dependent children by identifying and eliminating risk factors].)

Our Supreme Court admonishes us to exercise our discretion to excuse forfeiture with care, citing the well-being of the minors and paramount considerations of their permanency and stability. (See In re S.B., supra, 32 Cal.4th at p. 1293.) In that case, the court ruled that the appellate court did not abuse its discretion by entertaining the issue raised by the mother on appeal despite her failure to object in the juvenile court. (See ibid.) If anything, the case before us presents a stronger case for exercise of that discretion, as the context of the Supreme Court's case and the case before us are markedly different.

The issue in In re S.B. arose during the permanency planning hearing stage--at the end of the juvenile dependency process, when the interests had actually shifted to focus on the permanency and stability of the minors. (See In re S.B., supra, 32 Cal.4th at p. 1292; see also In re Stephanie M. (1994) 7 Cal.4th 295, 317, cert. den. sub nom. Jose M. v. San Diego County Department of Social Services (1994) 513 U.S. 908; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609-610.) By contrast, the matter before us was in a much earlier stage, when the parent's interest in reunification is given precedence over the child's need for stability and permanency. (See In re Marilyn H. (1993) 5 Cal.4th 295, 298, 310.) As the exercise of discretion to excuse the mother's forfeiture in In re S.B. was proper, a fortiori, it is appropriate in the case before us as well.

Given the circumstances of this matter--the early stage of the proceedings, the importance of reunification services in the juvenile dependency scheme, the jurisdictional nature of the juvenile court's error, its due process implications, and the inherent difficulties posed when a parent appears to suffer from a mental disability--we find this to be an appropriate case in which to exercise our discretion to excuse Danae's forfeiture of her right to raise this issue on appeal.^[5]

C. Prejudicial Error

The department also asserts that the juvenile court's error was harmless, arguing that Danae cannot show that any different result would have occurred if she had been ordered to undergo the psychological evaluations after--rather than before--jurisdiction over the minors was established. This argument assumes that the error is subject to a harmless error analysis. For her part, Danae contends that the error was prejudicial.

We have recently considered the proper analysis to use when we find that a juvenile court committed procedural error in its proceedings. Our first inquiry must be whether this error is a structural error in the trial mechanism that requires reversal per se. (See Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514.) Structural error is an error that affects the framework within which the trial proceeds, rather than an error in the trial process itself. (See In re Angela C. (2002) 99 Cal.App.4th 389, 394.) In the matter before us, the juvenile court based its decision to deny a parent an opportunity to have reunification services--the primary means by which parents may satisfy the juvenile dependency statute's goal of reuniting broken families--on the parent's failure to comply with an order that the juvenile court had not yet acquired jurisdiction to make. The order impinged on Danae's constitutional liberty and privacy interests before the juvenile court had demonstrated its need to protect the minors by actually taking jurisdiction over them. (See In re C.C., supra, 111 Cal.App.4th at p. 91.) This error was not a minor one, but one that implicated the fundamental fairness of the juvenile court proceedings. (See In re Angela C., supra, 99 Cal.App.4th at pp. 394-395; see also Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1514.) As such, we find that the juvenile court's improper denial of reunification services was structural error.

D. Conclusion

As the juvenile court order compelling Danae to undergo psychological evaluations could not properly be entered before it took jurisdiction over Gwendolyn and Krystal, the denial of reunification services to Danae could not lawfully be based on her failure to comply with that illegal order. The error was structural and thus, the order denying Danae reunification services was reversible per se. The matter must be remanded to the juvenile court, which has since taken jurisdiction over the minors. On remand, the juvenile court may lawfully order Danae to undergo psychological evaluations to determine whether she suffers from a mental disability rendering her incapable of utilizing reunification services. (See § 361.5, subd. (b)(2).)^[6]

The order denying reunification services is reversed and the cause is remanded to the juvenile court for further proceedings consistent with this opinion.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

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

^[2] As Keith is not a party to this appeal, the opinion includes facts about him only as relevant to the issues Danae raises on appeal.

^[3] All subsequent dates refer to the 2005 calendar year unless otherwise indicated.

^[4] By this time, the department regarded Keith as the girls' presumed father. On June 9, the juvenile court found that he was the presumed father.

^[5] We note that the negative impact of our reversal and remand on the minors may be less than it might be in other cases, as Gwendolyn and Krystal are older, focused on their own progress, and could be reunified with their father, who has been offered reunification services.

^[6] In light of this ruling, the other issues Danae raises on appeal--challenging the juvenile court's finding that reunification services were not in the best interests of the minors and contending that a guardian ad litem should have been appointed before it denied reunification services--are now moot.