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In re Vanessa A.

California Court of Appeals, Second District, Eighth Division
Mar 19, 2008
No. B198093 (Cal. Ct. App. Mar. 19, 2008)

Opinion


In re VANESSA A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GEORGETTA A., Defendant and Appellant. B198093 California Court of Appeal, Second District, Eighth Division March 19, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court for the County of Los Angeles. Robert L. Stevenson, Referee. Reversed and remanded with directions, Super. Ct. No. CK 51146

Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.

COOPER, P. J.

SUMMARY

The mother appeals from an order of the juvenile court, issued at a combined hearing on the adjudication of a petition under section 342 of the Welfare and Institutions Code and on the disposition of a petition under section 300 of the Code. The mother asserts the evidence did not support the court’s order, which denied the mother custody and provided her monitored visitation. She also appeals the denial of her motion to quash a subpoena for her mental health records, and asserts notice was defective under the Indian Child Welfare Act (ICWA). We find no error in the substance of the trial court’s orders. However, because notice was concededly defective under the ICWA, we reverse the order and remand for the limited purpose of compliance with the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

This is an appeal by the mother from findings and orders made at a jurisdictional and dispositional hearing held under sections 300 and 342 of the Welfare and Institutions Code. At that hearing, the juvenile court found each of the mother’s four children to be a dependent child of the court under section 300, subdivision (b), and placed the children in the care of a paternal aunt. The court denied mother custody; denied her unmonitored visitation; denied her motion to quash a subpoena for her mental health records; and ordered family reunification services for a six month period.

All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.

When the children were detained, all four were in the sole physical custody of the father, after more than three years of involvement in dependency proceedings. The previous proceedings began in January 2003, when Vanessa A., D.T. and Des.T. were first removed from the home based on domestic violence between the parents. The children were detained with a paternal aunt, with monitored visits for both parents. In October 2004, the children were returned to the care of the mother and father, on the condition that the parents comply with court-ordered programs including completion of family counseling. The family continued to receive family maintenance services. In November 2005, however, the children – now including a fourth child, Daryl T. – were again removed from the home, based on the mother’s neglect. All the children were placed in the sole physical custody of the father, who was appointed legal guardian of the oldest child, Vanessa. (Vanessa is the child of a different father whose whereabouts are unknown.) As to the three younger children, a January 31, 2006 custody order and juvenile final judgment gave the mother reasonable unmonitored visitation, with the father granted discretion to liberalize the mother’s visits, and terminated jurisdiction. Jurisdiction was terminated as to Vanessa in May 2006.

The current proceedings were initiated on August 28, 2006, when the Los Angeles Department of Children and Family Services (the Department) detained the children based on allegations that the father had been arrested and incarcerated for cultivating two marijuana plants within access of the children. The children were detained with the paternal aunt who had cared for them during the previous proceedings. The detention report indicated that the mother informed the caseworker that, because the children were being placed with the paternal aunt, she felt she would not have access to them and therefore planned to take the children once she had access. As a result the Department viewed the mother as a flight risk and recommended that visitation with the mother be monitored in a neutral setting. The court ordered monitored visits for both parents, and also ordered ICWA notice, as the mother advised the court she had Blackfeet or Cherokee Indian heritage.

An adjudicatory hearing was held on October 12, 2006. The Department’s report indicated the mother told the social worker that she had used marijuana with the father in February and April 2006. The report stated that the mother saw a psychiatrist, in February and April, who wrote her a prescription for Prozac which she did not take; the minors wanted to live with their father; the family had serious dysfunctional issues because the parents could not get along; the children told the social worker that their mother was crazy; the mother called the Department and said the father had threatened her life (which father denied); and the mother thought that making allegations against the father would bring the minors back to her. The court ordered the children to remain detained with the aunt, with monitored visits for the father and unmonitored visits for mother for three hours per week, and ordered a supplemental report on the mother’s counseling and other program needs and on the father’s programs.

At the next hearing on October 24, 2006, the parties agreed that an evaluation of the mother under Evidence Code section 730 would be performed by Dr. Michael Ward. The Department filed an interim review report on December 15, 2006. The mother failed to complete her psychological evaluation, missing two appointments with Dr. Ward because, she said, she could not find his office. The social worker had observed at the previous court hearing that mother was cursing to herself and had her eyes half open, and the worker thought she was under the influence. The mother was subsequently asked to test, and admitted smoking marijuana. The report stated the parents were not cooperating, and recommended no reunification services for either parent.

Meanwhile, the Department had subpoenaed the mother’s records from the Department of Mental Health. At a hearing on December 11, 2006, a representative of the Department of Mental Health appeared with the records. Mother’s counsel objected to the court’s review of the records in camera, based on counsel’s failure to give proper notice to the mother under Code of Civil Procedure section 1985.3. The court continued the matter to the following day, and at that hearing found that notice to the mother was required and that mother’s counsel could file a motion to quash the subpoena. Counsel did so.

On December 18, 2006, the date scheduled for the disposition hearing, the Department filed a section 342 petition as to the mother, alleging she had a history of emotional and psychiatric problems, and that those problems and her drug use limited her ability to parent the minors and put them at risk of emotional harm and damage. At the hearing on December 18, the court again ordered an Evidence Code section 730 evaluation, and appointed Dr. Armando de Armas to conduct it.

On February 5, 7 and 8, 2007, the court held a combined hearing on disposition of the August 28, 2006 petitions and on jurisdiction as to the December 18, 2006 petition. The court received Dr. de Armas’s report. Dr. de Armas testified, as did two social workers and the mother. The court took judicial notice of all court findings and orders in the previous juvenile proceedings, and admitted various reports prepared by the Department. The court made these rulings:

· With respect to the mother’s mental health records, the court denied the mother’s motion to quash the subpoena (which was made principally on the ground of failure to comply with Code of Civil Procedure section 1985.3 notice requirements, and included an assertion that the patient-psychotherapist privilege applied). The court observed:

· There was substantial compliance with the notice requirements of Code of Civil Procedure section 1985.3, so the court did not need to decide whether or not that section applies in juvenile proceedings.

· It was appropriate for the court to review the documents in camera, based on the section 342 petition and the allegation of mental health issues with respect to the mother.

· The court’s in camera review showed the documents were not relevant and would add nothing to the case, so the court declined to disseminate the documents to the parties.

· The court did not rule on the patient-psychotherapist privilege, although it observed that it did not think the privilege attached because it did not appear that mother received any kind of psychotherapy.

· The court sustained the section 342 petition, as amended to state that the mother suffered from significant depression and a narcissistic personality requiring long-term psychotherapy, and was a user of marijuana, both of which conditions limited her ability to parent the minors, endangered their emotional or physical health and safety, and put them at risk of emotional harm. The court also found by clear and convincing evidence that there would be substantial danger to the physical and emotional well-being of the children if they were returned home to the parents.

· The court ordered six months of reunification services for the mother, and advised her that if after six months the court found she had not made substantial changes in her life and still presented a risk to the children, then the court would most likely terminate any further reunification services. The court ordered individual psychotherapy with a licensed clinical therapist; if necessary, an assessment for psychotropic medication; and that mother take any medication that might be prescribed for any mental health problems. The court also ordered her to participate in drug testing and counseling, and ordered monitored visitation, with discretion to liberalize.

The mother filed this timely appeal from the court’s order.

DISCUSSION

The mother contends that (1) the court’s reasons for not placing the children in mother’s custody and for not granting her unmonitored visitation were not supported by substantial evidence; (2) the court erred in denying the motion to quash the subpoena for the mother’s mental health records; and (3) the juvenile court erred in failing to insure ICWA notice. The first point is without merit; the second point is not properly before this court for decision; and the Department concedes the error relating to ICWA notice.

A. Substantial evidence supports the court’s refusal to place the children in the mother’s custody and its order for monitored visitation.

Both parties agree that the evidentiary standard to be applied by the trial court in refusing to place the children with the mother is the clear and convincing evidence standard. “When a parent challenges a disposition order on the basis of insufficient evidence, we review the record in the light most favorable to the trial court to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on clear and convincing evidence. Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 852.) We have no difficulty concluding this standard was met.

The mother argues she was a nonoffending and noncustodial parent under the petitions filed in August 2006. She argues section 361.2 applies to her. (Section 361.2, subdivision (a) provides that when a court orders removal of a child, the court must first determine whether there is a parent, with whom the child was not residing, who desires to assume custody; if that parent requests custody, the court must place the child with the parent “unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”) A ruling that a child should not be placed with a noncustodial, nonoffending parent requires a finding of detriment by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) However, the section 342 petition filed December 18, 2006, which the court sustained, renders the mother an offending parent, so section 361.2 does not apply. Consequently, the court was required to find (as it did) by clear and convincing evidence that there would be “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home . . . .” (See § 361, subd. (c)(1).)

The court found “by clear and convincing evidence that there would be substantial danger if the children were returned home to the parents,” and described the evidence upon which it based that finding as follows:

“First, mother a couple years ago, was seen by a psychiatrist and was prescribed Paxil. And mother listened to her mother and stopped taking the medication. And she indicated that she didn’t think it was helping her. [¶] Well, that indicates to the court that she has, at least recently, not been willing to take the prescribed medication as prescribed by a doctor. That concerns the court. So I think that is one risk factor the court is looking at. [¶] Second of all, it was approximately ten years ago, but there was a situation where she tried killing her sister with a knife. This was the part of the history that was taken by the doctor who performed the 730. [¶] She has also indicated that she has – in the 730 – she feels depressed at times and has thoughts of suicide, although she has not attempted suicide or had no plan or intent to do so. So I think these are substantial factors that the court is looking at in making my findings that there is clear and convincing evidence of a substantial danger. [¶] Mother has continuing emotional problems that have not been resolved and, when she has sought treatment, she hasn’t followed the doctor’s instructions. And I think that is very concerning to the court, and I believe this continues to be some of the reason why this case is still in the system. [¶] And so those are my findings, essentially, also, that mother, I believe, as I have indicated when I made the findings regarding the very [sic] jurisdictional hearing – I think she does still have improper use of marijuana, and I think that she needs to get counseling for that, as well as to continue testing.”

There was ample evidence supporting the court’s determination of substantial danger if the children were returned to the mother. The court took judicial notice of the findings and minute orders in the earlier proceedings, which included removal of the children from the mother’s custody on two prior occasions, the most recent of which resulted in the children being put in the exclusive physical custody of the father. The court expressly found the mother’s testimony “not to be credible and I think that she has used drugs. She has admitted to using drugs; marijuana, specifically.” Based upon her admitted use, as recently as October 2006, the court found her use “still presents a risk to the children.” Mother also admitted she was aware marijuana was being grown in the backyard where the children were living. Dr. de Armas’s evaluation of the mother stated that her personality testing “revealed significant elevation in the areas of narcissistic and negative is that [sic] personality styles.” He concluded there was “indication of a depressive disorder and of significant personality difficulties,” and that mother was “in need of individual, long-term psychotherapeutic treatment focusing on her symptoms of depression and on her problematic personality style.” The court expressly found the mother had continuing emotional problems that had not been resolved; that she had not followed doctor’s instructions; and that “this continues to be some of the reason why this case is still in the system.” In short, there is no merit to the mother’s contention that there is “no substantial evidence to support an order that does not place the children in her custody.” On the contrary, the order was fully supported by the evidence.

The court also observed, during argument on the jurisdictional allegations of the section 342 petition: “What concerns me about B-2 [the allegation that marijuana use limited mother’s ability to parent and put the minors at risk] and the mother is that mother’s credibility is – as much as she tried to appear credible with her tearfulness – and I am sure she is missing her children. I’m sure that is very difficult for her. My concern is that she has done certain things with respect to making false allegations against the father that turned out – and she admitted they were absolutely not true. And I’m not really finding that her testimony was all that credible today. I have to look at what she has admitted to before, lying to the police before about father, someone molesting her child, and to get back at the father over some nonsensical issue.”

Mother argues she should have been granted unmonitored visitation, “given the prior unmonitored visitation that had occurred without any problems.” The court, however, was concerned because it had no results of random drug tests. When mother’s counsel asked for unmonitored visits, the court said: “When we have some testing, if it all shows clean – right now, I don’t have any results.” The court gave the Department discretion to liberalize visitation. We find no abuse of discretion in the court’s order.

B. The question whether the juvenile court erred when it denied the mother’s motion to quash the Department’s subpoena for her mental health records is not properly before this court.

The mother argues at length that the trial court erred in denying her motion to quash the Department’s subpoena for her mental health records, contending the documents were protected by the psychotherapist/patient privilege, which she did not waive. The Department responds with arguments that (1) it had a right to inquire into the mother’s mental state because she placed her mental condition at issue, and (2) the notice requirements of Code of Civil Procedure section 1985.3 do not apply in dependency proceedings. None of the points raised by either party is at issue on this appeal.

First, the basis for the mother’s motion to quash the subpoena was the Department’s failure to give the mother the notice required by Code of Civil Procedure section 1985.3. The trial court found, however, that there was substantial compliance with Code of Civil Procedure section 1985.3, so it did not have to decide whether or not that section applies in juvenile proceedings. Neither do we, because the mother makes no argument in her opening brief concerning the applicability of Code of Civil Procedure section 1985.3. Thus, there is no issue relating to Code of Civil Procedure section 1985.3 before this court to decide.

Second, the mother argues that her motion to quash should have been granted because the records subpoenaed were privileged under the psychotherapist/patient privilege. But the mother did not make her motion to quash on that basis, and the trial court did not rule on the privilege. It stated:

“I’m not ruling on the privilege because I don’t need to get to that point, at this point in time. I don’t think it attaches, but I am really saying that these documents should not be disseminated because they are not relevant to today’s hearing, and it’s just cumulative evidence that I already have, that I’m already considering, and so that is my ruling on that issue.”

The court had previously observed that it did not believe the mother received any kind of psychotherapy at the Department of Mental Health, “and so, based upon what I have reviewed, the privilege would not attach ….”

Accordingly, the question whether the documents were privileged is not before this court either. The trial court did not decide the question; the mother was not disadvantaged by the lack of a ruling on the question; and this court cannot decide the issue in any event, because the documents were not used below and, pursuant to a stipulation of the parties and an order of the trial court, were ordered returned to the mother through her counsel. Again, there is nothing for this court to decide.

C. The Department concedes that proper notice was not given under the ICWA.

The mother contends proper notice was not given under the ICWA. (25 U.S.C. §§ 1901 et seq.) Where the court has reason to know that an Indian child is involved in a custody proceeding under the Welfare and Institutions Code, state law mandates notice to all tribes of which the child may be a member or eligible for membership. The notice must be to the tribal chairperson, unless the tribe has designated another agent for service. (§ 224.2, subd. (a) (2) & (3).) In this case, notice was sent to several tribes, but not to the designated agent for service of the Eastern Band of Cherokee Indians. The Department concedes the error. Accordingly, we must remand the matter for the limited purpose of ensuring compliance with the ICWA. (See In re J.T. (2007) 154 Cal.App.4th 986, 994.)

DISPOSITION

The order of February 8, 2007, is reversed and the case is remanded to the juvenile court with directions to order the Department to comply with the notice provisions of the ICWA. If, after proper notice to the Eastern Band of Cherokee Indians, the court finds that the children are Indian children, the juvenile court shall proceed in conformity with all provisions of the ICWA. If, on the other hand, the court finds that the children are not Indian children, the order of February 8, 2007 shall be reinstated.

We concur: RUBIN, J., FLIER, J.


Summaries of

In re Vanessa A.

California Court of Appeals, Second District, Eighth Division
Mar 19, 2008
No. B198093 (Cal. Ct. App. Mar. 19, 2008)
Case details for

In re Vanessa A.

Case Details

Full title:LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Mar 19, 2008

Citations

No. B198093 (Cal. Ct. App. Mar. 19, 2008)