MAKING THE CASE FOR A PARENT WHO PRESENTS WITH STRANGE OR ERRATIC BEHAVIOUR AND WHETHER THE MINOR FALLS UNDER DEPENDENCY JURISDICTION

MAKING THE CASE FOR A PARENT WHO PRESENTS WITH STRANGE OR ERRATIC BEHAVIOUR AND WHETHER THE MINOR FALLS UNDER DEPENDENCY JURISDICTION

A parent may challenge the sufficiency of the evidence alleging that a minor comes within the Welf & I C § 300 (b) definition of a dependent child. The parent may cite to the first clause of Welfare and Institutions Code section 300, subdivision (b)(1) which authorizes the juvenile court to exercise jurisdiction over a child if it finds by clear and convincing evidence that the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child”. In many cases a parent with a serious mental illness may find themselves after the initial detention facing a juris dispo hearing where the department may be alleging that the parent’s bizarre behaviour alone is placing the minor at risk of harm or neglect.

DEPENDENCY SCHEME IS DEFERENTIAL TO THE MINOR; RELYING ON THE “CHILD’S BEST INTEREST STANDARD”

The import of the juvenile dependency scheme holds that dependency jurisdiction under Welf & I C 300(b)(1) can only be authorized after a finding of clear and convincing evidence, as the need to assign parental culpability must comport with federal due process considerations. Courts have held that ignoring these evidentiary due process rights would lead to parental rights being terminated and the family unit destroyed without any finding of unfitness or neglectful conduct.
Unlike LPS Conservatorship, the burden of juvenile court is first and foremost the welfare of the minor. The courts have stated that childhood does not wait for the parent to become adequate, and if quick action on the court is in the best interest of the child, then the court must act so even at the cost of some degree of risk to the parent’s due process rights. Additionally, the department and minor’s counsel in appealing to the court’s broad authority to control the proceedings before it, may ask the court to justify assumption of jurisdiction based on the ideal that a home environment free from the negative effects of mental illness symptoms is a necessary condition for the safety, protection and physical and emotional well-being of the child. Citing in part from Welf & I C § 300.2. Additionally, the juvenile court holds the special responsibility to consider the totality of the child’s circumstances, “including the maintenance of relationships with other adults with
whom the child has a strong bond”. In re J.T. (2014) 228 Cal.App.4th 953, 964.
 
HOW THE DEPARTMENT MAY PROVE THE “MORE” OR THE NEXUS BETWEEN THE BIZARRE OR ECCENTRIC BEHAVIOUR
 
In arguing whether the parents’ mental illness symptoms, the department must present evidence of a specific, non-speculative and substantial risk to the minor of serious physical harm as a direct result of the parents’ bizarre or eccentric behavior.
For example, if the department finds that the parent has a lengthy history of bizarre or eccentric behaviour that is tried to a DSM V psychiatric diagnosis then they may presume that a newfound episode of bizarre or eccentric behaviour may be jurisdictional as the court must consider the totality of the record. The department can proffer evidence showing that there is a pattern where bizarre or eccentric behaviour tends to leads to personal impairment or psychiatric decompensation to the point where the person’s behaviour places them at a risk of dangerousness to self or others, then the department can point out that the historical records creates a nexus to a “substantial risk” of harm or neglect to the child that is not insignificant.
 
The department may also consider other facts into determining whether bizarre or eccentric behaviour carries a risk of detriment to the minor. Drawing from the logic of Conservatorship of Guerrero, supra, decided after Conservatorship of Walker and Conservatorship of Benvenuto, a juvenile court could clarify that the following evidence that would be considered for a determination of present risk of harm to the minor: The patient lacks insight of his or her mental illness, the patient feels that they do not need medication, there is history showing that the patient cannot provide for themselves without medication, and they will not take medication without supervision.
 
Additionally, under Welf & I C § 300.2 a home environment should be free from the negative effects of [strange or erratic behaviour as a result of mental illness] as it may be a necessary condition for the safety, protection and physical and emotional well-being of the child. The referenced Welf & I C § 300.2 “negative effects” must be of the sort likely to result in serious physical harm or neglect to the minor. Counsel must look over the fact pattern and determine if there are such negative effects as described in Welf & I C § 300.2. Examples may include a parents’ bizarre behaviour even without evidence of direct violence or neglect. It may simply be evidence of the child’s emotional distress, poor grades, onset of new poor eating habits, or avoidance of the parent.
 
PARENT’S COUNSEL SHOULD NARROW THEIR ARGUMENT TO DEMONSTRATE THAT BIZARRE BEHAVIOUR WITH THE “MORE” OR A CLEAR NEXUS SHOULD NOT BE JURISDICTIONAL
 
Some parents’ advocates may argue that bizarre or eccentric behavior, even if it interferes with the parents’ normal intercourse with society, should not rise to a level warranting dependency jurisdiction unless and until the parents’ behavior renders that parent unable to fend for themselves and by extension their children, or places their children at risk of serious physical harm. Only then does the responsibility of the state to protect the minor override the parents’ individual liberty rights.
To ensure that parents are not unnecessarily having their parental rights placed at risk the statutory 300 (b) definition stipulates that the fact pattern needs to meet three elements: there is (1) neglectful conduct by the parent in one of the specified forms, (2) there is a nexus or causation; and (3) there has been serious physical harm to the minor, or a “substantial risk” of such harm.

First to fight the allegation that a parent was neglectful to the minor via strange or erratic behaviour due to their mental illness, counsel may want to advise the parent to engage with treatment programs, therapy, or schedule an appointment with a doctor prior to the juris hearing. If the parent shows that they made these efforts before the jurisdiction hearing counsel could argue that the parent that was aware of the risk that mental illness can play in taking care of a minor and that they took steps to control the mental illness. Another aspect is foreseeability. If the parent may have known about the potential ability to put their child in danger with their strange or erratic behaviour, then counsel would need to prove that the parent acted as a reasonable parent, had the insight or ability to foresee the dangerousness of their strange behaviour, and act on it by engaging in it away from the minor or in a way that the minor would be minimally impacted.
These strategies may help counsel overcome the nexus argument that the department may make and show that the parent has acted in a way that has demonstrated insight and minimized the chance of “substantial risk” of harm or neglect to the minor.

Additionally, parent’s counsel can fight the Welf & I C §300.2 provision citing that a home environment free from the negative effects of mental illness is a necessary condition for the safety, protection, and physical and emotional well-being of the child. Parent’s counsel can provide evidence of successful participation in a treatment program for mental illness as the court may consider such in evaluating the home environment. Counsel should be sure to enter into the record certificates and letters from service providers showing that the parent has been taking steps to address the mental illness. Because the Title XXs may not have evidence of such or the department may forget to include that in the report, parents counsel should be proactive and ask the client about their history of treatment and willingness to join a treatment group. Counsel may also argue that if the parent is complying with programs and treatment, leftover strange or erratic behaviours ought not warrant court jurisdiction when the record before the court indicates that the parent is availing themselves of mental health services appropriately.
 
Counsel may also state that the parent’s current actions are appropriate, reasonable and likely to be successful in alleviating the effects of bizarre or strange behaviour that might bring the minor under the court's jurisdiction.

PARENT’S COUNSEL IN PROVING THEIR CASE SHOULD CITE TO DAVID B V SUPERIOR COURT

Parent’s counsel would do well to cite to David B. v. Superior Court, 123 Cal. App. 4th 768, 789-90, 20 Cal. Rptr. 3d 336, 352 (2004). This case is a solid reminder to the court that even though the minor’s best interest always prevails, the court ought to be mindful that alternative lifestyles and different behaviours do not always in every circumstance pose a substantial risk to the minor.
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We do not get ideal parents in the dependency system. But the fact of the matter is that we do not get ideal parents anywhere. The State of California is not in the business of evaluating parents and redistributing their offspring based upon perceived merit. The parents who come through the dependency system are more in need of help than most. If we are lucky, they are parents who can learn to overcome the problems which landed their children in the system, and who can demonstrate the dedication and ability to provide for their children's needs in an appropriate manner. They will not turn into superstars, and they will not win the lottery and move into a beachfront condo two blocks from a perfect school.