Kristin H., In re

• Decision Date: 01 July 1996
• Docket Number: Nos. H014212,H014894,s. H014212
• Citation: 54 Cal.Rptr.2d 722,46 Cal.App.4th 1635
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 4975, 96 Daily Journal D.A.R. 7957 In re KRISTIN H., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. KIMBERLY I., Defendant and Appellant. In re KIMBERLY I. On Habeas Corpus

Page 722

54 Cal.Rptr.2d 722

46 Cal.App.4th 1635, 96 Cal. Daily Op. Serv. 4975,

96 Daily Journal D.A.R. 7957

In re KRISTIN H., a Person Coming Under the Juvenile Court Law.

SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. KIMBERLY I., Defendant and Appellant.

In re KIMBERLY I.

On Habeas Corpus

Nos. H014212, H014894.

Court of Appeal, Sixth District, California.

July 1, 1996.

Review Denied Sept. 25, 1996.

[46 Cal.App.4th 1641] Enid Evans Baggett (Court-appointed), Yuba City, for Appellant.

George W. Kennedy, Dist. Atty., Robert J. Masterson, Deputy Dist. Atty., Jeff Bryson, Deputy County Counsel, for Respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

An indigent parent in a dependency proceeding has a right to appointed counsel where out-of-home placement of the child is an issue. (Welf. & Inst.Code section 317.) ¹ Effective January 1, 1995, section 317.5 has been added to the code. It provides that parties who are represented by counsel at dependency proceedings "shall be entitled to competent counsel." Today we consider the nature of this statutory right.

We believe section 317.5 reflects legislative recognition that dependency proceedings may "work a unique kind of deprivation" (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1707, 12 Cal.Rptr.2d 294) and implicate fundamental interests deserving of protection--both a parent's "fundamental liberty interests" in maintaining the parent-child relationship (In re Laura F. (1983) 33 Cal.3d 826, 844, 191 Cal.Rptr. 464, 662 P.2d 922) and the child's "fundamental independent right" in being part of a family unit. (Adoption of Kay C. (1991) 228 Cal.App.3d 741, 749, 278 Cal.Rptr. 907.) In consideration of these compelling interests, which have been recognized as ranking "among the most basic of civil rights" (In re B.G. (1974) 11 Cal.3d 679, 688, 114 Cal.Rptr. 444, 523 P.2d 244), we conclude that the Legislature's express provision for competent counsel for parents and children in dependency proceedings was intended to We therefore find in this case that the mother's claim of ineffective assistance of counsel, raised by petition for a writ of habeas corpus, is cognizable in this court. We further find that she has made a prima facie showing that the proceedings below violated her statutory right to counsel and that she was prejudiced thereby. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Consequently, we will issue an order to show cause, returnable in the trial court, as provided at the end of this opinion.

include a right to judicial review of claims of incompetence of counsel.

In her appeal, which we consider together with the habeas corpus petition, the mother contends that the juvenile court's jurisdictional and dispositional orders were not supported by the evidence. We disagree and affirm the orders.

FACTUAL BACKGROUND

Kristin H. was four years and nine months old when she was taken into protective custody on September 20, 1994. She had lived with her mother all her life, with the exception of two months during the summer of 1994, which she spent with her grandparents in Connecticut.

On the night of September 20, 1994, the mother was upset over the recent death of a close friend. Around 7 p.m., she snorted a line of some substance she thought was either "coke or meth," which an acquaintance had offered her. She began to feel dizzy and numb and panic set in. She called her psychiatrist, Dr. Greg Sazima, and told him she had taken something and thought she was going to die. She called a neighbor and said she was paralyzed and couldn't move. She also called her sister and her boyfriend, Emilio Diaz. Diaz became concerned and called 911. At some point during the evening, a neighbor bathed Kristin and put her to bed.

Police and paramedics arrived at approximately 10:25 p.m. and found the mother lying on the kitchen floor. She explained she had snorted something and that it made her sick. In the bathroom the police found a mirror and a plastic straw containing a residue of white powder. These items had been left in a place which could be reached by Kristin, who was apparently in bed asleep when the police arrived.

The mother was cited for being under the influence of a stimulant and was taken to Valley Medical Center and placed on a 72-hour psychiatric hold. She was released the next morning. Kristin was taken into protective custody and placed in the children's shelter.

The previous week, on September 14, 1994, another incident had been reported to police by a neighbor. The neighbor reported that Kristin was wandering alone on the street while her mother slept, and that Kristin did not want to go home. The neighbor had reportedly heard the mother telling Kristin "I can't be bothered with you. I'm going to send you to the shelter." Another neighbor told police the mother had been upset recently. Police also interviewed the mother and the mother's psychologist, Dr. Robert Chamberlain, who had been treating the mother for approximately a year. Dr. Chamberlain stated that the recent death of a friend of the mother's had put her "in crisis." However, Dr. Chamberlain was comfortable with Kristin remaining in her mother's care at that time and the matter was not pursued.

Prior to this, there was a third incident in June of 1994. The mother was distraught over problems with her boyfriend and took an overdose of Xanax, a drug prescribed by Dr. Sazima for anxiety. Diaz, the boyfriend, called 911 and when emergency services arrived they found the mother in a deep sleep and non-responsive. She was taken to the hospital and Kristin was taken into protective custody. The mother and the Department of Family and Children's Services entered into an informal supervision agreement, whereby the mother agreed to participate in individual and family psychotherapy and take her medication as prescribed.

To give the mother respite, and at Dr. Chamberlain's suggestion, Kristin spent the next two months, from June 16, 1994, to August 17, 1994, with her maternal grandparents in Connecticut, after which she returned to her mother's care. On September 2, 1994, the supervising social worker reported Following the incident on the night of September 20, 1994, the Department filed a petition under section 300, subdivision (b) [Failure to Protect], alleging in addition to the events of September 20, 1994, that the mother had a long history of mental illness and had attempted suicide on three occasions. Kristin was ordered detained on September 23, 1994.

that she was concerned about the mother's stability and that the mother seemed overwhelmed by having her daughter back in her life.

Supervised visitation was authorized for the mother twice a week. The social worker initially conditioned the visits on the mother taking her prescribed medication. However, the mother's treating doctors advised the social worker that this was improper without a court order. Therefore visits were made contingent upon the mother's behavior. If she were combative, abusive or provoked staff at Clover House, visits would be discontinued.

An amended petition was filed September 27, adding an allegation that the mother refused to take her "psychotropic medication." It also alleged that the minor's father, Michael H., was incarcerated for probation violation and it summarized his criminal history, which included numerous prior convictions for violent crimes. Previous child protective services referrals involved the father's abusive behavior towards the mother and the minor. He had harassed and stalked the mother for years and had been convicted for felony stalking based on the mother's testimony.

A jurisdictional hearing was set for October 21, 1994, and was continued several times. On December 14, 1994, it was again continued to February of 1995, over the vigorous objections of the mother, who told the court that her daughter was suffering from the delay and wanted to come home. The mother had apparently been promising Kristin during visitation that she would be coming home. She told Kristin that she wanted to take her home but that "They won't let me." The court ordered the mother not to discuss the case with Kristin during visitation.

The visits during these first few months were characterized by a range of behavior and emotion. Observers noted that there was obviously a deep bond between mother and daughter. Often they cried together and talked about being reunited at home. Sometimes they sat and read books together or just held each other. They shared jokes and laughed. At other times, the mother raged against the "assholes" and "liars" who had made a "big mistake" and were keeping her daughter from her. She complained loudly about her daughter's care at the foster home, about the incompetence of the social worker and about the rules at Clover House. She was particularly angry that the social worker had sent reports to the father revealing her current address, and that as a result he was now harassing her again.

On February 16, 1995, the social worker wrote an addendum to her October 21, 1994, report, recommending that Kristin be returned home to her mother. Visits were going well and the mother was focusing on her daughter "in a supportive and more positive manner." The mother had met with the foster mother, the child's therapist and the social worker and together they had engaged in a productive problem-solving session. The mother was amenable to suggestions. Her behavior at Clover House had improved. She had begun seeing Dr. Chamberlain again and was agreeable to taking her prescribed medication, which he believed helped her to cope. She had enrolled in a drug program and a parenting class and had indicated a willingness to participate in any other services the court might require. Kristin had been disruptive at her temporary foster home. She stated she wanted to go home to her mother.

The social worker made the following observations:...