R. S., In re

• Decision Date: 03 May 1985
• Citation: 167 Cal.App.3d 946,213 Cal.Rptr. 690
• Court: California Court of Appeals Court of Appeals
• Parties: In re R.S., a Minor. DONALD H. et al., Petitioners and Respondents, v. TANYA S., Objector and Appellant. GUARDIANSHIP OF R.S., a Minor. DONALD H. et al., Plaintiffs and Respondents, v. TANYA S., Defendant and Appellant. Civ. F003748.

Page 690

213 Cal.Rptr. 690

167 Cal.App.3d 946

In re R.S., a Minor.

DONALD H. et al., Petitioners and Respondents, v. TANYA S., Objector and Appellant.

GUARDIANSHIP OF R.S., a Minor.

DONALD H. et al., Plaintiffs and Respondents, v. TANYA S., Defendant and Appellant.

Civ. F003748.

Court of Appeal, Fifth District, California.

May 3, 1985.

Review Denied July 18, 1985.

[167 Cal.App.3d 953] Nancy Marsh, under appointment by the Court of Appeal, Fresno, for objector and appellant and defendant and appellant.

James B. Preston, Visalia, for petitioners and respondents and plaintiffs and respondents.

Peter C. Carton, under appointment by the Court of Appeal, Bakersfield, for the Minor.

William A. Richmond, Dist. Atty., Peter George Champion, Deputy Dist. Atty.-in-Charge, Visalia, as amici curiae on behalf of the Minor.

OPINION

HAMLIN, Associate Justice.

Tanya S. appeals from the judgment declaring her five-year-old son, R. David Shawn S. (the minor), free from her custody and control (Civ.Code, § 232, subd. (a)(6)) ¹ and appointing Donald Eugene H. and Debra Lyn H. (hereafter petitioners) as guardians of the minor ( § 239). Petitioners filed the petition to free the minor from Tanya's custody and control. In it they alleged that Tanya was and would remain incapable of supporting or controlling the minor because of mental deficiency or mental illness.

Tanya urges on appeal that the judgment terminating her parental rights should be reversed because the trial court failed to make the required finding that immediate termination was the least detrimental alternative to protect the interests of the minor. Additionally, Tanya contends (1) the trial court's findings and judgment are not supported by clear and convincing evidence, (2) both she and the minor were denied effective assistance of counsel, and (3) the trial court should have appointed a guardian ad litem for her. We agree that the trial court's failure to find that immediate termination of the parental relationship was the least detrimental alternative available to protect the welfare of the minor mandates reversal of that portion of the judgment which terminates Tanya's parental rights. We reject Tanya's other contentions and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

The minor was born to Tanya on February 2, 1980. His birth certificate indicates Tanya declined to identify the minor's father.

During the first two years of the minor's life, Tanya, who suffers from a mild degree of mental retardation due to brain lesions suffered as a child, was intermittently involved with Central Valley Regional Center (CVRC) in Visalia. That agency tested the minor and concluded he was growing and developing normally. He was getting good care and attention and was not considered developmentally disabled.

From January to December of 1982 Tanya shared living quarters with two different women. Both of them dominated and exploited Tanya, who tends to be a dependent personality. In December Tanya and Jean Gildez, with whom she was living, arranged to place the minor in day care at the First Assembly Baptist Church. When the minor started preschool in January 1983, he was not toilet trained and was observed by his teachers to be somewhat withdrawn and unwilling to interact with other children. The teachers described the minor as immature and behind developmentally. Based primarily on the minor's lack of toilet training, the school insisted that the minor be withdrawn in April 1983.

At Gildez' urging, Tanya gave the minor to petitioners soon after he was withdrawn from school. Tanya signed guardianship papers, and petitioners understood adoption papers were to be forwarded to them by attorney Mike Duncan. However, the guardianship papers were incorrectly completed and were never filed; no adoption papers were ever prepared. Nonetheless, around May 1, 1983, petitioners returned to their home in Oregon and took the minor with them.

Almost immediately Tanya began to regret her decision to give up the minor. After she left the residence she shared with Gildez, CVRC placed Tanya into a program to aid her in developing independent living skills. CVRC emphasized to Tanya that her best, if not only, chance to recover her son was to gain necessary independent living skills so that she could provide for him. Tanya did well in this program until Gildez reentered the picture because Gildez had decided petitioners should not have custody of the minor but instead he should be returned to Tanya. As a result of Gildez' letter writing and other forms of harassment, Tanya terminated her participation in the program and her involvement with CVRC.

Although petitioners had been advised that Tanya wanted her son returned to her, they filed a petition for guardianship and a petition to terminate Tanya's parental rights on September 6, 1983. Based on a motion by petitioners, the court appointed two psychiatrists to examine Tanya to determine whether she was at that time or would become capable of caring for the minor. Counsel for petitioners and counsel for Tanya stipulated that the doctors' reports could be received in evidence without requiring the doctors to appear in court, but each party reserved the right to call either or both of the doctors to testify. The trial court appointed the District Attorney of Tulare County to represent the minor. It also held a hearing in October 1983 on temporary placement of the minor and ordered that the minor remain in petitioners' custody pending further hearing and that Tanya have a three-hour visit with the minor.

Soon after the hearing on temporary placement, Tanya's private counsel moved to be relieved because Tanya had lost confidence in her and would no longer cooperate. The trial court granted that motion and appointed the Public Defender of Tulare County to represent Tanya. About two and one-half months later the trial court considered petitioners' petitions for guardianship of the minor and to terminate Tanya's parental rights. At the conclusion of the trial on both petitions the trial court found "clear and convincing evidence that there is a severe problem of dependency on the part of Tanya." It further found that there was evidence Tanya had been offered help by way of programs and classes to develop parenting skills and she did not follow through, that the evidence presented was sufficient to sustain the petition, and that it would be detrimental to remove the minor from the present home. The court then granted the section 232 petition and the petition for appointment of petitioners as guardians of the minor. It directed that adoption proceedings should take place in Oregon, where petitioners resided. The trial court filed detailed written findings and judgment on January 30, 1984.

DISCUSSION

1. Failure to Make a Necessary Finding.

At the time the instant petition was filed, section 232, subdivision (a)(6), provided in pertinent part:

"(a) An action may be brought for the purpose of having any child under the age of 18 years declared free from the custody and control of either or both of his parents when the child comes within any of the following descriptions:

"...

"(6) Whose parent or parents are, and will remain incapable of supporting or controlling the child in a proper manner because of mental deficiency or mental illness, if there is testimony to this effect from two physicians and surgeons each of whom must have been certified either by the American Board of Psychiatry and Neurology or under Section 6750 of the Welfare and Institutions Code or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders....

"The parent or parents shall be cited to be present at the hearing, and if the parent or parents have no attorney, the court shall appoint an attorney or attorneys to represent the parent or parents and fix the compensation to be paid by the county for such services, if the court determines the parent or parents are not financially able to employ counsel."

Subdivision (6) was added to section 232, subdivision (a), by amendment in 1967. No legislative history is available except the restricted Governor's chapter bill file which contains two letters. The first, from Senator George Danielson, the author of the bill, states in part, "This amendment was carried by me at the request of the Adoption Agencies and is intended to fill a gap which will permit a Court, under proper safeguards, to declare a child free of the custody of parents who are severely afflicted with mental deficiency or mental illness. This is necessary in order that an adoption can be completed." The second letter, from James V. Lowry, M.D., Director of Mental Hygiene of the State Health and Welfare Agency, includes a statement of the purpose of the bill: "This bill is apparently designed to cover a situation where the parent is not committed to a state hospital, but is hospitalized under a Short-Doyle program or similar operation. This would provide local machinery that presently exists for the state hospital situation."

In In re Carmaleta B. (1978) 21 Cal.3d 482, 490, 146 Cal.Rptr. 623, 579 P.2d 514, the California Supreme Court stated, "Mentally ill persons under section 232 have been judicially defined as those persons '(a) [w]ho are of such mental condition that they are in need of supervision, treatment, care or restraint' or '(b) [w]ho are of such mental condition that they are dangerous to themselves or to the person or property of others ...' [Citations omitted.]" The Supreme Court declined to liberalize this definition of mental illness to facilitate termination of parental rights, relying in part upon "the proposition that family rights, both the parent's and the child's rights, should not be vulnerable to a too easy finding of mental illness. Indeed, the strictness of this definition of...