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THE DANGER FOR DEFENDANTS ON PROBATION
This submission will rely on CA’s state’s Business and Professions Code § 6068 et seq as a template. CA law does not apply to other states as they have their own Business and Professions Rules and State Bar rules. However, the spirit of the law is very similar throughout. I’d like to address an exceedingly narrow population who will be hit by the increase in abortion bans and future criminalization; defendants on probation relying on their lawyers’ advice to ask if they can ask their probation officer to leave state to get treatment or find some manner to get treatment out of state while avoiding violation of probation and/or new criminal charges. Criminal defendants represented by public defenders are advised to ask their lawyers for advice during the life of their case. When they are released on probation they are assigned a probation officer and must stipulate to many terms to release such as early evening curfew; sometimes ankle monitors, treatment program attendance, weekly or biweekly in-person drug testing, and other terms. In order to be exempt from one of these terms or to have an “excused absence”, defendants will need to proffer official documentation to their probation officer to leave state or miss a few drug testing appointments. Because of this defendants will go to their lawyer to ask for legal advice if they need to leave state for an abortion. As everybody knows, this necessitates a multiple day absence; impossible with ankle monitor and near impossible for those with curfews/random check ins. When defendants want to know if it is safe to tell their probation officers, they go to their lawyers because they are told that their conversations between their lawyers are protected under client confidentiality. We already know with the bounty hunter laws, anyone who knows about someone attempting “aids or abets” an abortion may sue. My concern is not with probation officers and other probation actors of the state knowing; it is specifically about the one person who defendants rely on to maintain their privacy; their counsel. My argument is that *in the near future defendants will not even be able to ask their lawyers for advice about leaving state to get abortion care. As people all know most pro-life advocates are pushing for criminalization of abortion for both women and providers. https://www.reuters.com/world/us/louisiana-lawmakers-withdraw-bill-declaring-abortion-homicide-2022-05-13/ It is not a matter of if but when. I believe that lawyers should ready themselves for a reality where this is a huge issue for probation defendants, know how it may play out, and learn how to mount a defense for clients; a term colloquially called “impact litigation”. Many legal scholars have written extensively about how in the world of criminal justice the cards are stacked against defendants especially low income and POC defendants and that even programs and persons assigned to help the defendant reintegrate are still to their detriment. See “Carceral state” https://www.polisci.upenn.edu/sites/default/files/Law%20and%20Social%20Inquiry.pdf and https://columbialawreview.org/wp-content/uploads/2020/10/Ristroph-The_Curriculum_of_the_Carceral_State.pdf Criminalization of abortion will make this divide even more transparent. Once future states successfully pass laws criminalizing abortion, then this will trickle down right to private attorney client relations between probation defendants and their public defenders. As of currently the ABA has an exception to client confidentially where lawyers “may” report to their state bar their client’s intent to “commit” a crime. In California jurisprudence the requirement for disclosure is discretionary not directory but reportedly in the following states: Arizona, Connecticut, Florida, Illinois, Nevada, New Jersey, New Mexico, North Dakota, Texas, Virginia, and Wisconsin counsel is required to reveal client confidential information to prevent the client from inflicting serious bodily harm or death upon a third party. https://www.sdap.org/wp-content/uploads/downloads/research/criminal/ethics2.pdf at pg 30 Assuming arguendo that this requirement to report is discretionary, prolife lawyers or lawyers who are afraid of sanctions/disciplinary actions by the state bar will report the defendant’s intent. For those who are dubious of my assertion, all must remember that many hospitals are actively shying away from/or outright refusing to treat miscarriages with no heart beat given that the first line treatment, D&C’s, are the same procedure used in elective abortions. I believe that there is nothing that distinguishes lawyers from being just as wary as doctors. With laws criminalizing abortion a probation defendant’s intent to seek treatment out of state will trigger this duty to report given that in these states abortion will be (1) a criminal act that (2) the lawyer can reasonably believe is likely to result in death of or lead to substantial bodily harm to, (3) an individual [the fetus]. The lawyer must report to the extent that the lawyer reasonably believes disclosure will prevent said criminal act which they believe is likely to result in death of or lead to substantial bodily harm to an individual. Some may point out that there are clauses that allow the attorney to warn the client before they must disclose. This is true but again with there being pro-life lawyers out there and lawyers fearful of sanctions and discipline, they may not even consider the weight of this clause: A lawyer shall, if reasonable under the circumstances: (1) make a good faith effort to persuade the client to not to commit or to continue the criminal act; or to pursue a different of conduct that will prevent the threatened death or substantial bodily harm (impossible if the woman is seeking to terminate the pregnancy which most are set in their decision), and to finally inform the client of the lawyer’s ability or decision to reveal [confidential communications] protected by Business and Professions Code section 6068, subd. (e)(1). Many pro-life lawyers or lawyers or are bad faith lawyers will report and state that they reasonably believed that they were not able to “pursue” the woman to take a different course of action hence rendering the confidential communication with their defendants on probation moot.
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“This story says it all. Left-of-center lawmakers who block efforts to rescue the SMI of the world, in the name of protecting "rights," are the mirror image of thoughts-n-prayers conservatives who block any effort to stem the carnage of gun violence”
NAMI’s dissent (https://naminycmetro.org/involuntaryremoval/?fbclid=IwAR3_pPbgXu568QJ0IR4tW9CNcFQwCx83jKQSGVR0EBkU7VEct_mYiyyFyW8) takes treatment advocates to task for allegedly abandoning patient’s due process rights in favor of a purportedly overly vague, discriminatory, and invasive standard. However, as the preponderance of evidence standard set forth under Welf. & Inst. Code, § 5150 [subdiv] indicates, CA has always recognized the inherent limits on the detention powers. NAMI and DRC’s unfounded claim cites that expanded criteria is without judicially enforceable boundaries and disregard the patient’s rights recognized in (People v. Triplett (1983) 144 Cal.App.3d 283); as NAMI cites these expanded provisions will effectually obliterate the distinction between treating seriously decompensated gravely disabled mental illness and lesser degrees of mental illness. Their contention that these expanded provisions irrationally strike at the very nature of being homeless or indigent, is without merit, given that mental health laws in practice generally shy away from involuntary detention, relying on any shred of evidence of the patient’s ability to care for his or her trifecta of needs per Welf. & Inst. Code, § 5008 et seq. The mere fact that the LPS Act does permit a finding of grave disability, in part on said patient’s ability to find any form of shelter, is not constitutionally violative. So lets dissect what NAMI’s official statement and see how as legal advocates we can fight this: From the outset, NAMI asserts that “However, the Administration’s expanded use of Kendra’s Law or AOT to people with SMI who “cannot meet their basic needs” is beyond problematic”. This indicates that NAMI will not go further to defend AOT/CARE court or expanding the GD definition. NAMI further doubles down and states that “Instead of using the least restrictive approach, we are defaulting to an extreme that takes away basic human rights. We need to meet people where they are, not forcibly remove them. The City has the power to provide onsite treatment, as well as treatment in homeless shelters or supported housing, but has chosen not to”. These statements clearly reflect that NAMI considers that pursuing NY’s new law/AOT/ CARE would be akin to “stepping into the shoes” of the [mental health department] to prosecute involuntary treatment petitions. NAMI through more rigorous advocacy and increased legal presence (through serving as amici) would not suddenly become “the prosecutor”. Rather, by providing mental health education and advocacy services to families involved in mental health proceeding, NAMI ensures they and by extension patients fully know the extent of mental health laws and have all the relevant and important evidence that may not make it into the record otherwise. Furthermore, endorsing CARE/AOT would not signal to the public that NAMI is asking that CA implement reductionist aggregating categorical standards that reduces all mentally ill patients into one uniform category destined for involuntary detention no matter what; rather, NAMI would explain that it understands that within CA’s current mental health legal authority, case law has upheld that a grave disability finding is not a rubber stamp decision; it requires a multitude of factors such as serious decompensation, history of illness, third party assistance, noncompliance, and anosognosia. (Conservatorship of Guerrero (1999) 69 Cal.App.4th 442, 444) In contrast with DRC’s and NAMI’s assertions, most treatment advocates aver that Welf. & Inst. Code, § 5008 et seq. definition of grave disability is still far too narrow a definition and its burden of proof too great to often overcome (controverting Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 279) This assertion is supported by numerous findings regarding the serious impact that “non-treatment” carries on patients, families, and the public [citation]. Simply because the most vocal voices opine that CARE/AOT substantially impacts civil liberties does not necessarily make it so. In these cases, NAMI’s and DRC’s claims are substantially weakened by the fact that they rely so heavily on a simplified claim of “easy” involuntary commitment standards that actual case law disproves (Conservatorship of Roulet (1978) 20 Cal.3d 653) and medical professionals disagree as they cite a high burden of proof for involuntary commitment makes detainment and treatment unworkable. “As a peer-led, peer-run organization, we know that peer-led non-police response to mental health crisis, such as CCIT-NYC model can be effective”. Despite the seemingly inherent conflict in having NAMI take a position contrary to the patient’s intentions to avoid involuntary treatment or LPS Conservatorship, the Legislature has expressly provided that the import* of the LPS Act determines the legal outcome; not just the patient and their wishes. *(To end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons, developmentally disabled persons and persons impaired by chronic alcoholism, and to eliminate legal disabilities; To provide prompt evaluation and treatment of persons with serious mental disorders or impaired by chronic alcoholism; To guarantee and protect public safety) Because of this, NAMI’s advocacy for treatment should not be viewed as an onslaught on patient rights, but rather a positive sign that they are not simply “acting as a mouthpiece” for the patient in advocating for a liberalized position evidenced to endanger patient outcomes. NAMI states that “We need to pass the Treatment Not Jail Act to help people with SMI get health care, not experience involvement with the criminal legal system”. However, their concern like DRC’s is again misplaced as “nothing in the legislative history of the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) suggests that the Legislature intended wholesale incorporation of criminal procedure… into civil mental health commitment proceedings”. (Conservatorship of Bones (1987) 189 Cal.App.3d 1010, 1013). There are two points of contention here that NAMI raises but treatment advocates reject; one, that “LPS/MH proceedings are criminal and punitive in nature” and two, “that treatment advocates in fighting for broader criteria are in effect arguing for increased involvement with the criminal justice system”. The theme of NAMI's press statement additionally highlights how NAMI wrongly conflates involuntary treatment and conservatorships with providing more power to the carceral state. Yes "pro" treatment advocates do acknowledge how the carceral state intimates its power into our state’s civil (mental health) and penal systems and how its effects extend far beyond the period of detention and exacerbate social inequalities post release, trapping the poor and people of marginalized demographics. We do understand that part of the work is to educate the police in working with the mentally ill and working with prosecutors to better understand SMI, but treatment advocates are very much pushing for CA's separate trained mental health diversion team that is less "aggressive" and punitive than untrained police currently are. We again state that the goal of treatment is not punishment nor decreased outcome of life post discharge citing id. Advocates emphasize how without treatment those like Linda Rippee / Catherine J Rippee-Hanson 's brother Mark become a victim of the carceral state and either spend years behind bars languishing or die due to neglect; a very intended outcome woven into the design of the carceral state. Pro treatment advocates would most likely cosign me on this, on saying that pro treatment advocates truly have the best interests of the mentally ill in mind and that via early diversion programs (CARE/AOT)/ conservatorship/ or drug tx we are advocating for a truly decreased carceral response (PERT, police, or PC § 1367 diversion) to mental health inequities thus (with better funding) improving the outcome for the SMI. If we want to be the best advocates we can be, we need to understand the foundation of their objections’ and what legal authority we [treatment advocate legal groups] can rely on in defending and expanding involuntary treatment criteria. Ill provide an example of a recent CA supreme court opinion where rights for patients increased. Disability Rights CA has an ongoing presence in filing amicus briefs and “taking a stand” whenever key issues arise relating to LPS conservatee’s rights. It is their amicus brief in the (Conservatorship of E.B. (2020) 45 Cal.App.5th 986, 988) case that raised the specific point of how “San Francisco Found That More Than One-Third of LPS Conservatorships Last More Than A Decade” and “60% of the people conserved under the LPS Act in San Francisco were conserved for five years or more” which affirmed the sentiment expressed in (Conservatorship of Roulet (1978) 20 Cal.3d 653): “In effect, these statutes assure in many cases an unbroken and indefinite period of state-sanctioned confinement”. This amicus brief may have been fatal to Conservatorship of E.B. and thus resulted in further expansion of LPS conservatee’s rights in trials. These points that DRC et al raise may seem nominal but many times have shaped important [treatment] legal authority, changing laws to be less amiable toward "common sense" treatment. Judges can see DRC making these seemingly “cogent” legal arguments, but I have yet to see NAMI on the forefronts of defending involuntary treatment laws. Rather, I am sure many here have seen them decry the increasingly hard to win legal battles for LPS Conservatorship/treatment and write statements about the SMI crisis, but I have yet to see good amicus briefs come from them. Yes, their LPS Conservatorship class is helpful but there is still more they can do to teach (like how to fight the Welf & I C § 5354 (a) clause about suitable alternatives to involuntary tx via statutory (word) analysis. And everyone here in CA knows this is a large problem; as it was even mentioned in a federal case “The PG denied the referral for LPS on the basis that “there is no evidence beyond a reasonable doubt that conservatee has exhausted all the alternatives to LPS”. United States v. Arnette (2022). As already address, NAMI through more open and rigorous advocacy/ increased legal presence through serving as amici would not suddenly become “the prosecutor”. They would simply be ensuring caregivers have all the tools to ensure that the LPS court has all relevant and important evidence that may not make it into the record otherwise. Some people express concern that NAMI, by teaching caretakers how to pursue a more aggressive approach to defending mental health clients, would be “stepping into the shoes” of the Public Guardian to prosecute involuntary treatment petition and in turn be another unwanted arm of the carceral state. The LPS legislature did not intend the wholesale incorporation of criminal procedure into these special commitment proceedings; it implies that orders upholding treatment plans in the best interest of the patient, not a patient’s due process “wishes”, ought to determine the outcome of a case. Because of this NAMI would be further perpetuating its goal of “dedication to building better lives for the millions of American affected by mental illness”. The LPS act already adequately safeguards the patient’s rights (high burden of proof required, unanimous jury verdict, fifth amendment right, and hearsay provisions under (People v. Sanchez, 63 Cal. 4th 665, 374 P.3d 320) so increased treatment advocacy from NAMI would not be fatal to their cause as supportive [to] mental illness grassroots organization So everyone has been having problems with the PG pushing for failed placement on the streets or the shelter before they will pursue full LPS Conservatorship. However, no where in the law does it state that one needs to fail placement in the streets or shelter first before LPS can be initiated (given that the patient is currently gravely disabled).
Homelessness or shelter placement is not a suitable alternative to continued detention (or LPS Conservatorship). Welf & I C § 5354 subdiv (a) dictates that “the officer providing conservatorship investigation shall investigate all available alternatives to conservatorship and shall recommend conservatorship to the court only if no suitable alternatives are available”. If the Public Guardian recommends against LPS Conservatorship, they must set forth all alternatives available in their report. The operative word “suitable” shall be the center point of this argument. The plain and ordinary meaning of suitable is the “right or appropriate [choice] for a particular person, purpose, or situation”. When determining the statutory language of the Welfare and Institutions Code, we start with the statute's words, and rely on the ordinary meanings as a reliable indicator of the legislative intent. If the words themselves are not ambiguous, we shall presume the legislature meant what it said, and the statute's plain meaning governs. If there may be confusion, we shall look to the legislative history consider the consequences of alternative interpretations, and whether its comports with public policy. The LPS Act under Welf. & Inst. Code, § 5001 et seq establishes that the “legislative intent” shall be to (a) end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders … and chronic alcoholism, and to eliminate legal disabilities. (b) provide prompt evaluation and treatment of persons with mental health disorders (c) To guarantee and protect public safety. (d) To safeguard individual rights through judicial review. (e) To provide individualized treatment, supervision, and placement services by a conservatorship program for gravely disabled persons (i) To provide services in the least restrictive setting appropriate to the needs of each person. By interpreting discharge to a shelter or the streets, the hospital and doctor shall be ignoring the directives of the Welfare and Institutions Code listed ante. Almost all shelters lack empty beds, have limited treatment programmes, have frequent “fights” and combative clients. None of these are conducive to treatment or stability. Thus we argue that discharge to a “non-suitable” dangerous option; the streets or an already “full” shelter shall be an abuse of the Public Guardian’s discretion. It would be inimical to the policy undergirding the LPS Act to allow a court to proceed on an incomplete Welf. & Inst. Code, § 5354 report. Such would be tantamount to "extrinsic fraud" so egregious as to rise to the level of a denial of due process. In LPS proceedings, the Public Guardian has fundamental interests (individualized treatment, supervision, and placement) of their own that may diverge from the interests of the patient. Welf. & Inst. Code, § 5350.1. The centrality of the issue of grave disability at the P-con hearing brings with it the heightened severity of consequences that can result from an erroneous decision; an "unbroken and indefinite period of state-sanctioned confinement” authorized by Welf & I C §§ 5352.1, 5361. (Roulet, supra, 23 Cal.3d at p. 224) or premature discharge to the streets in an acute psychotic state rendering them unable to care for food clothing or shelter. The public vests a unique obligation of trust and confidence that the Public Guardian has in preparing a proper report for the P-con hearing. Subpar work by the Public Guardian violates the obligation of trust &confidence that patients and treatment advocates vest in them during P-con proceedings as they should be able to view the Public Guardian as a "champion” in the court for appropriate treatment and all be able to place faith in its expert analysis of grave disability and appropriateness of LPS conservatorship. The party who really suffers most due process violation when the Public Guardian submits a wholly inadequate report, is the patient. By failing to provide the information required by § 5354, it not only destroyed the evidentiary foundation for an accurate determination of current grave disability, but deprived patient of the assistance of fully informed counsel. Under such circumstances just as the suppression of information material to guilt or innocence in a criminal trial violates the due process right of the defendant to a fair trial (Brady v. Maryland (1963) 373 U.S. 83), the Public Guardian violates a patient's due process right to a fair P- con hearing.
The term “reasonable efforts" is a novel concept to LPS Conservatorship. We always hear about no reasonable services within the Juvenile Dependency system in regards to whether the department upheld its duty to provide parents with reasonable services to help them ameliorate the conditions that brought their minor under the jurisdiction of the court. If the department fails to ensure that a finding of reasonable services makes it into the "record", then their Title XX [citation] funding is at risk of being stripped. Within child welfare law, reasonable services brings up many challenges and confounds; yet, there are no efforts to strike the reasonable services provisions from Welfare & Inst Code as everyone understands the best interest of the minor prevails over judicial expediency. We hear about the treatment plan for LPS conservatives per Welf. & Inst. Code, § 5350.1 in our legal trainings, we read about it now and also in CLE publications, and on monthly? basis nursing staff sign off on treatment planning progress. Despite there being legislature directives mandating that a treatment plan be developed after 10 days of the LPS conservatorship being established; there is scarce legal authority/remedies ensuring enforcement of the treatment plan Welf. & Inst. Code, § 5352.6. Parents frequently voice their concerns about the treatment at IMDs and attorneys rarely refer to reasonable efforts in court and most of them approve of what the IMD has done without much paperwork. LPS Conservatorship has been previously hailed as the holy grail of control; yet I believe that reasonable efforts/no reasonable efforts findings are second most powerful tool in LPS conservatorship court. Judges can use this tool at their disposal in LPS court to ensure stabilization and a move toward discharge to community setting. We must task the treatment team with holding review meetings a finding of whether there were reasonable services and use the legal tools to ensure that the IMD is doing its job. Welfare and Inst Code provides no solid definition for enforcement of reasonable efforts in implementing a treatment plan, many commentators have criticized this omission as having codified enforcement clauses makes sense. Uniformity in treatment plan implementation varies depending on funding; what is reasonable in one county may not be in another. The capacity of each county will depend on the mental health funding and services available. Everyone in mental health knows that for the State to lose more funding dollars would make this proposal impossible and result in fewer resources for the IMDs and case managers. Moreover, most attorneys for patients do not address the issue believing that it does net really affect their client or that there is nothing they can do. I believe that the reasonable efforts/no reasonable efforts findings must be taken seriously as enforcing reasonable services will result in positive changes for the conservatee by the time their LPS conservatorship is up for renewal. Welf. & Inst. Code, § 5278 states that individuals authorized to detain for 72-hour holds shall not be held either criminally or civilly liable for exercising this authority in accordance with the law. However, Jacobs v. Grossmont Hospital (2003) 108 Cal.App.4th 69, 71 dissects the extent of this protection. The court in Jacobs further concluded that Welf. & Inst. Code, § 5278 does not confer immunity for negligent or other wrongful conduct that may occur in the evaluation or treatment of involuntarily detained patients. The Jacobs court states in its opinion that Welf. & Inst. Code § 5278 means precisely what it says it means and precludes med malpractice liability for [standard allegations of] battery, false imprisonment, detention and treatment without consent, or for general medical malpractice insofar that the detention under Welf. & Inst. Code, § 5150 was executed in accordance with the law. This moves us into the next issue which determines the standard of review for such liability In Gonzalez v. Paradise Valley Hospital (2003) 111 Cal.App.4th 735, 736, the court clarified that the scope of immunity afforded under Welf. & Inst. Code § 5278 is a legal question best answered by “rules of statutory construction”. Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 376 further clarified that the conduct protected under § 5278 is confined to the exercise of statutory authority to detain, evaluate, and treat against the patient's wishes, and does not extend to the manner in which the 5150 evaluation and treatment are carried out. In other words, this court opined that liability arising from negligence in 5150 evaluation or treatment is not the same liability covered under the umbrella of § 5278 “exercise of this authority in accordance with the law”. We now move into the issue of statutory interpretation. The fundamental rule of statutory construction is that a court should ascertain the intent of the California legislature so as to effectuate the purpose of the law. In re Marilyn H. (1993) 5 Cal.4th 295, 298. Moreover, every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. A court must use the construction that comports most closely with the intent of LPS legislature, with a view to promoting rather than defeating the general purpose of the law, and strive to avoid an interpretation that would lead to absurd consequences. Thus the intent of the LPS act is to promote treatment of the patient and protection of the public. This shall further apply to Welf. & Inst. Code, § 5278 and by allowing § 5278 to provide immunity over negligent 5150 evaluations that fall below the standards expected of reasonably competent medical professionals in the field of psychiatry contravenes the intent of the LPS act. Although the Jacobs court does not address the issue of statutory interpretation, it does opine that “however, the court does not interpret case law to insulate from liability negligent medical treatment that falls below the standard of professional care” it does speak to the clinician providing the assessment and evaluation needs to act that does not fall below the standard of professional care. This case although not controlling may be persuasive in showing that the intent of the LPS act is to promote treatment rather than insulate hospitals and physicians from overly cautious reticence toward treatment. In making a case, counsel would have to argue that they are not opining that the hospital is liable for the patient’s behaviour that occurred before and during the 5150 but rather that the physician misapplied the 5150 criteria and thusly fell below the standard of professional care and thusly is not insulated from liability otherwise covered under § 5278. The law excuses the physician from civil suits regarding false imprisonment not negligent treatment. For example counsel could directly reference Welf. & Inst. Code, § 5150.05, subd. (a) and Welf. & Inst. Code, § 5150, subd. (b): “in determining whether there is probable cause, a person authorized to make that determination may consider “available relevant information about the historical course of the person's mental disorder” and “they shall not be limited to consideration of the danger of imminent harm”. They could cite to the code and create the nexus to the fact that the physician failed to consider these factors despite plenty of evidence. One standard used by appellate courts when arguing a case, counsel needs to show that a different outcome would have been achieved had this error not been made (standards on appeal) to win a reversal. In some form counsel could show that patient would have been 5150ed and benefitted from it had physician considered the excluded evidence. [more updates soon] In proving that a doctor fell below the standard of professional care may be hard to prove as the courts could be deferential to the treating doctor. However, if counsel can obtain the hospital documents via the Business Records exception [cite], they can show through via nursing notes, MD written statements, and relative documents submitted to the patient file that the assessing physician was aware of the patient “meeting” criteria for ongoing grave disability, harm to oneself through neglect or inability to care for oneself, lack of third party assistance, and lack of insight into her mental illness, and they did not act within the current standard of psychiatric care given their access to the psychiatric notes and statements. This is a highly controversial issue in dependency courts. The courts when involved with parents who have SMI consider if the parent's disability render the parent incapable of utilizing reunification services. If court believe so then services can denied under Welf & I C 361.5 (b)(2). If not the court may offer services like medication management, psychological assessment, therapy, and other narrowly tailored services for the parent. This is deceptively simple. Because the child's best interest is the prevailing standard in dependency litigation, minor's counsel and county counsel will make decisions and recommendations to the court even if those recommendations are misplaced due to a lack of knowledge of mental illness. Often the courts deem the time needed for psychiatric stabilization as too lengthy as 6 months to stabilize: "while this may not seem a long period of time to an adult, it can be a lifetime to a young child. Childhood does not wait for the parent to become adequate". In re Marilyn H. (1993) 5 Cal.4th 295, 310. Parents are held to a high standard and when they re-convene for review hearings or CFTs, a parent's temporary relapse could lead to a recommendation by the department for termination of services and a setting of a .26 hearing much to parents' dismay and outrage. In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787 is a case where a mentally ill parent who was under LPS conservatorship was able to utilize the services offered and reunify with her two children. However, this case illustrates that parents with mental illness face larger hurdles than others. In this case the appellate court opined that a juvenile court must first consider the circumstances of the mother, who despite being hospitalized for SMI for most of her reunification period, had still substantially complied with her case plan and demonstrated that she could keep her children relatively safe and cared for. The trial court had opined that the mother's mental illness was too "risky" to allow return home and terminated services and set the matter for a .26 hearing to terminate her rights to her children. However, on appeal, the reviewing court found that "the elaborate statutory scheme governing dependency proceedings nor dependency case law deprives the trial court of exercising its discretion to accommodate the special needs of a mother who has mental illness given her unusual circumstances". Simply stated, mother's counsel fought to have evidence of her stability, compliance, and witness testimony preserved in the record to overcome the instant court's "bias" against SMI mothers. Years back, courts operated under the presumption that harm to the child could be presumed from the mere presence of parental mental illness and assumed the children would be "infected". There have been some improvement as you can see with In re Elizabeth R, in which courts must lay a proper basis for a dispositional ruling based on expert testimony that cites to specific examples of how SMI had and would adversely affect the child health and jeopardize the child's safety. Courts should strive to reject any inferences or stereotypes than can be drawn from a labeled SMI diagnosis. The mere fact a mother is labelled bipolar/schizophrenic really tells the court little about her anticipated behavior and its effect on her children. The way a court should use this crucial and yet nebulous SMI diagnosis in ruling on the merits should be only a starting point, not its conclusion. Rather than jumping/rubbing stamping a specific jurisdiction/disposition/ or .26 termination order because the mother is SMI, the diagnosis should guide the court and department in an in-depth examination of her psychiatric history, her current presentation, her previous response to medication therapy, past compliance, and the potential benefits for future therapy with a focus on what effects her behavior will have on her children.
There are many times parents with SMI are given barebones services with no real follow up plan or assistance traveling to get them. Counsel in handling cases with SMI parents need to be aware that services are deemed unreasonable when the court orders limited visitation for parents in a IMD and/or provide no narrowly tailored services to address the parent’s mental disabilities. The converse also applies where the department will unnecessarily provide SMI extra programs that place extra burden on their work schedule. It is error to delegate to a mental health program the sole discretion to decide the length services for a SMI parent. This determination regarding when a parent has satisfactorily completed the mental health services portion of their case plan must be made by the juvenile court. In re Daniel B. (2014) 231 Cal.App.4th 663, 665. Mental health services can also be unreasonable when DCFS notifies a SMI parent that they are generally enrolled in programs but later asserts detriment based on a parent's failure to enroll in a single specific program. The department must maintain adequate contact with MH service providers and accurately to inform the juvenile court and parent of their sufficiency of the enrolled programs needed to meet the case plan's requirements. Given that parents with SMI can struggle to keep track of all of these programs while combatting symptoms of psychosis, they should be given some leeway by the court. These scenarios evidence the bias against SMI parents in the system and yes many SMI parents attract the attention of the department even when their conduct may not necessarily be actions that make their child come within the jurisdiction of the juvenile court per Welf & I C § 300 subdivision (b). |
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Juvenile Dependency and
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