John B., In re

• Citation: 159 Cal.App.3d 268,205 Cal.Rptr. 321
• Court: California Court of Appeals
• Decision Date: 06 August 1984
• Parties: In the Matter of JOHN B., A Minor. COUNTY OF SANTA BARBARA, Respondent, v. DIANE E., Appellant. Civ. 69783.

Page 321

205 Cal.Rptr. 321

159 Cal.App.3d 268

In the Matter of JOHN B., A Minor.

COUNTY OF SANTA BARBARA, Respondent, v. DIANE E., Appellant.

Civ. 69783.

Court of Appeal, Second District, Division 6, California.

Aug. 6, 1984.

Dawn Tilman, Los Angeles, under appointment by the Court of Appeal, for appellant.

Kenneth L. Nelson, County Counsel, Marvin Levine, Chief Asst. County Counsel, Mary Ellen Barilotti, Deputy County Counsel, Santa Barbara, for respondent.

ABBE, Associate Justice.

Appeal from a juvenile court disposition order in a case filed under Welfare and Institutions Code section 300(a). ¹ Appellant, who is the mother of the dependent minor in this matter, argues a twofold abuse of discretion by the court in that: (1) it failed to order reunification services and referred the child for permanency planning, despite the statutory mandate that the court order such services, and (2) it restricted appellant's visitation with the child to one supervised visitation per month, despite the statutory mandate that limitations on parental control not exceed those necessary to protect the child. (§ 361.) We find that the applicable law requires the juvenile court to order reunification services in this case and reverse.

Appellant has an extensive history of psychiatric problems. She has been hospitalized for treatment and evaluation numerous times over the past 12 years. Her mental disorder has been diagnosed as schizophrenia, paranoid type. Since 1980, appellant's conduct has taken on a criminal dimension. She has been arrested repeatedly on a variety of charges: vandalism, disturbing the peace, trespassing, burglary, petty theft, making annoying telephone calls, jaywalking and obstructing traffic, reporting a false fire alarm, and receiving stolen property.

During August of 1982, appellant, who was then pregnant, was committed to Camarillo State Hospital for psychiatric examination. According to the protective services report, "Santa Barbara County Mental Health had concerns about her being able to adequately care for her own health and that of her unborn child and conservatorship proceedings were initiated." Appellant left the hospital without authorization for a second time on October 24, 1982, when she was seven months pregnant. Her son, John B., was born on January 5, 1983, in Eureka, California.

Appellant came to the attention of Humbolt County Protective Services because of her unusual behavior at a hospital following her son's birth. She was there under an assumed name and would leave the baby unattended and wander off to talk to strangers. It was then discovered she had left Camarillo State Hospital without permission and there was an outstanding warrant issued for her for a probation violation.

Appellant was taken into police custody and incarcerated in the Humbolt County Jail on January 26, 1983. The minor was placed in a emergency shelter care home. A petition to have the infant declared a dependent of the juvenile court was filed in Humbolt County in February of 1983. The petition was sustained and the case transferred to Santa Barbara County, the mother's residence, for disposition.

The report of the protective services worker to the court revealed that appellant's three older children had been declared dependents in 1978. They were permanently placed in non-maternal custody in 1981 and 1982 when reunification efforts "... proved fruitless due to her deteriorating mental state." According to the report: "Numerous conservatorships have been filed on her but she seldom stays around long enough for them to be finalized. Her obvious psychiatric problems make it difficult for her to remain in jail yet she frequently leave [sic] State Hospital Commitments AWOL."

It was the opinion of the protective services worker that a reunification plan would be futile in view of "... the minor's mother's history of psychiatric problems, her hospitalizations, her criminal activities, her continuous refusal of psychiatric treatment and her failure to be reunited with her three older children despite the assistance of social services to work toward reunification over a period of years...."

On April 25, 1983, appellant's son was adjudged to be a dependent child of the juvenile court and he was placed under the supervision of protective services for foster home placement upon the court's finding that placement with his parents would be detrimental to the minor and the child's welfare required custody to be taken from his parents. ² Upon the recommendation of protective services, the court referred the minor for permanency planning, directed that a referral to the Santa Barbara County Adoption Agency be made, and ordered monthly supervised visitation with the infant for appellant.

We agree with appellant that the juvenile court erred by not ordering a reunification plan as part of its disposition and by referring the child to permanency planning at that stage. It appears that the prospects for successful reunification in this case are not good. However appellant is afforded an opportunity under the law to reform her conduct with the aid of appropriate social services aimed at reuniting the family. Respondent, County of Santa Barbara, would have us construe the statutory scheme as permitting a court to circumvent reunification endeavors whenever such efforts appear doomed to fail. We do not deem it appropriate to create such a judicial exception to the statutes.

The legislative scheme contemplates immediate and intensive support services to reunify a family where a dependency disposition removes a child from parental custody. Early planning for alternative permanent placement in a 300(a) case may only begin where timely return to parental custody proves improbable by the time of the six month status review of a foster placement disposition and the initial permanency planning hearing. (See §§ 366, 366.2 and 366.25.)

Prior to any dispositional order in a section 300 case, the probation officer is required to prepare a social study of the minor. (§§ 280, 358.) The study must include a recommended plan for family unification if it advises that the minor be removed from the home. (Cal.Rules of Court, rule 1376(b).) ³ The Advisory Committee Comment to rule 1376(b) suggests that the plan "... might include specific recommendations for improvements within the home, successful completion of therapy programs, or other conditions for returning the minor to the home. This will serve to put the family on notice as to what must be accomplished to reunite the family." The court must read and consider the study prior to any judgment and order of disposition. (§ 358; rule 1376(d).)

Where a dispositional order places a child described by section 300(a) in nonparental physical custody, the court must "... order the probation officer to provide child welfare services to the minor and the minor's parents or guardians for the purpose of facilitating reunification of the family within a maximum period not to exceed 12 months...." (§ 361(e), see also § 16507 [county welfare department staff to provide family reunification services]; § 16525 [family reunification services described].) Section 362, subdivision (a) provides that "... the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor, ... subject to further order of the court and consistent with subdivision (e) of Section 361." (Emphasis added.)

A nonparental placement disposition requires the court to inform the parents of the provisions of section 366.25 (permanency planning) and Civil Code section 232 (termination of parental rights) and warn them that their parental rights may be terminated permanently under these sections if they are not able to resume custody within 12 months. (361(b); see also rule 1377(d).)

At the subsequent six month status review of a dependent child's foster care placement, a juvenile court must order the minor returned to parental custody unless such return would create a substantial risk of detriment to the child's welfare. (§ 366.2(e).) If the court cannot order the minor returned to the physical custody of parents or guardians at the status review hearing, a permanency planning hearing must then be conducted by the court to determine the future status of the minor no later than 12 months after the original placement. (§ 366.25, subd. (a).)

Viewing the foregoing provisions together, we find that they require a good faith effort to develop and implement a family reunification plan whenever a court renders a dependency disposition of foster care in a 300(a) case. Even before the 1982 legislation (Stats.1982, c. 978, §§ 20, 21) revamped sections 361 and 362 to mandate c...