LPS MENTAL HEALTH CONSERVATORSHIP

LPS conservatorship
and
​juvenile dependency updates

  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • ABOUT YOURS TRULY
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LPS Conservatorship Court Overview
    • Public Conservator >
      • Los Angeles Public Guardian
      • CONSERVATORSHIP INVESTIGATION REPORT
      • CAREER >
        • Continuing Education
        • Public Conservator County Numbers '16
        • San Diego Public Conservator '19
      • LPS Conservatorship for Dependent Parents and Minors
    • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
    • Court of Appeals >
      • In re Ben C- Wende Brief no issue writ
    • Trial Court Transcript
    • Conservatorship Legal Documents
    • INITIAL INVOLUNTARY PROCEEDINGS >
      • Grave Disability >
        • Present Grave Disability
      • Venue
      • Conservator's Bond
      • When the Conservatee Goes AWOL
      • Involuntary Commitment
      • Conservatorship Factors
      • Riese Hearing >
        • Riese Hearing
      • Supplemental Security Income/ SSI >
        • Applying for SSI
        • Documents for SSI
        • Process and Appeal
        • Award Letter
        • Rep Payee
        • SSI Amounts 2018/2019
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose

12/4/2020

Indigency, due process, and termination proceedings

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HOUSING AND FINANCIAL DIFFICULTIES ALONE DO NOT MARK A PARENT A RISK TO THE CHILDREN’S WELLBEING AND TERMINATION OF SERVICES CANNOT BE ORDERED BASED ON THIS FACT ALONE. TRIAL COURTS ORDERING TERMINATION OF SERVICES AND PARENTAL RIGHTS WAS A DUE PROCESS VIOLATION.
 
 
 
In re G.S.R. (2008) 159 Cal.App.4th 1202., the court faces the issue of whether homelessness or inability to afford housing can stand alone as clear and convincing evidence of parental unfitness. The trial court found father’s poverty clear and convincing evidence of parental unfitness despite the father’s standing as a non offending parent, bond with his children, and compliance with his case plan, and ordered that his family reunification services be terminated and a hearing pursuant to Welf and Inst Code § 366.26 be calendared. The father filed a timely appeal and the appellate court ordered a reverse and remand on the grounds that the father’s proper status and bond with his children throughout the hearing demonstrated that he was of no detriment to his children and that the department violated his due process rights by failing to show proof of sufficient detriment to the minors.
 
The father at the time of detention did not have proper housing but was willing to move in with family relatives to secure stable housing for his children. Upon advice from minor’s counsel he refrained from moving in as it would jeopardize their benefits. Aside from housing father demonstrated consistent involvement in his children’s lives. He engaged with their after school activities, provided for their food and educational needs, and overall maintained a strong bond with his children. At the detention hearing he was designated the non offending parent and was given limited case plan requirements. The department ordered that his visitation be liberalized at unmonitored visits each week. At the time he was living in an apartment that did not permit multiple residents thus rendering his children’s placement impermissible. He had been ordered DV classes due to past domestic violence issues but completed those classes. At the next review hearing, he requested that he be allowed to move in with the mother and requested an extension of time to complete his case plan. The juvenile court denied his request citing that their living situation would prove detrimental to the minor and ordered that services be terminated and a permanency hearing be set. The court argued that the father’s lack of housing, unstable lifestyle, and failure to raise appeal prior orders finding detriment all contributed to the overall risk of detriment to the children. The trial court found the department proffered clear and convincing evidence of father’s risk of detriment, found the minors generally adoptable, and ordered termination of parental rights. Father and minors filed timely appeals.
 
The court of appeals found that the department violated father’s due process right (Santoky rights) when they severed father’s parental rights without a prior finding of parental unfitness and the fact that the department found father unfit based on the single inability to secure housing. The father contends that the juvenile court erred when it found him unfit based on the single issue of housing as that issue alone did not meet the current standard of proof of determining parental unfitness; clear and convincing evidence.
 
Juvenile court mandates that parents are granted due process right of finding of parental unfitness before severance of rights as parents serve as key caregivers with vested interests in their children. (Santosky v. Kramer (1982) 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d 599). Because of this consideration, the trial must make a finding of parental fitness by clear and convincing evidence prior to termination of parental rights. The evidence presented by the department must be clear enough that any more evidence would “prejudice the interests of the adoptable child” meaning that the amount of evidence of detriment must be great enough just bordering on prejudice to the minor. (In re Gladys L., supra, 141 Cal.App.4th at p. 848, 46 Cal.Rptr.3d 434.). Should the court meet this strict burden of proof, then and only then may they severe parental rights. In the matter of this case, the father was found to be the non offending parent and ordered liberalized visitation. He had a prior incident of domestic violence that was resolved prior to the 300 petition for this case. The department did not find that this prior evidence enough to meet the burden of proof finding father a clear and convincing risk of detriment to the children. Like the father in In re Gladys L., supra, 141 Cal.App.4th at p. 848, 46 Cal.Rptr.3d 434, father may have been absent for the first few years but once he was confirmed as the father the court found he never was found unfit and placement would not endanger the children. However, the GSR court found that the father was even more compelling for the following reason:
 
He has been involved with his sons throughout their lives, before and during this dependency proceeding.3  He always provided financial support, visited regularly, participated in the boys' schooling by helping with homework, and attending an IEP meeting and awards ceremony, and maintained contact with DCFS even when he lacked a place to live
 
Because of his involvement, he demonstrated an active participant in his children’s lives rather than simply a non offending parent.
 
The court returns to the primary contention that father’s lack of housing as a risk of detriment to the minor. The law specifically finds that “no minor shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family․” Welf and Inst Code § 300 (b).
 
Put differently, indigency, by itself, does not make one an unfit parent and “judges [and] social workers ․ have an obligation to guard against the influence of class and life style biases.”  (In re Cheryl E. (1984) 161 Cal.App.3d 587, 607, 207 Cal.Rptr. 728.)
 
The appellate court notes the record where there are numerous places where the social worker cites father’s inability to obtain housing as a risk of detriment. The social worker opined that his inability to gain housing was a show of lack of interest in caring for his children nor seeking placement with them. However, the record indicates that there was a conflict of interest with the father moving in with the mother for financial reasons. In addition, the department cites father’s failure to appear at several AA meetings as proof of risk of detriment. The record again indicates that father’s sobriety never played a role in the 300 petition for removal nor since. The department incorrectly cites In re P.A. (2007) 155 Cal.App.4th 1197, 66 Cal.Rptr.3d 783. Unlike the father in this case, that father failed to make many court appearances, did not request services, and make little attempts at compliance. As mentioned before, father actively was engaged in both his services, bonding with his children, and serving as a parental figure to the children. The appellate court summarized the difference as this father demonstrated that he cared for his children beyond simple parental status and his engagement was proof. The appellate opined that it was error to and a breach of due process to solely discriminate against poverty in separating the natural parent and child bond especially given that the father and children were closely bonded and cared for.
 
Because the trial court record reflected that father demonstrated excellent care and diligence to his children, completion of his case plan except for housing, and non offender status, the appellate court found that the trial court erred in its decision to terminate parental rights and ordered a reverse and remand of the prior decision.

 

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Phone: LPS (213) 974-0527
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Phone: (858) 694-3500 ext 2
© 2017 LPS Conserved   ALL RIGHTS RESERVED.
  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • ABOUT YOURS TRULY
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LPS Conservatorship Court Overview
    • Public Conservator >
      • Los Angeles Public Guardian
      • CONSERVATORSHIP INVESTIGATION REPORT
      • CAREER >
        • Continuing Education
        • Public Conservator County Numbers '16
        • San Diego Public Conservator '19
      • LPS Conservatorship for Dependent Parents and Minors
    • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
    • Court of Appeals >
      • In re Ben C- Wende Brief no issue writ
    • Trial Court Transcript
    • Conservatorship Legal Documents
    • INITIAL INVOLUNTARY PROCEEDINGS >
      • Grave Disability >
        • Present Grave Disability
      • Venue
      • Conservator's Bond
      • When the Conservatee Goes AWOL
      • Involuntary Commitment
      • Conservatorship Factors
      • Riese Hearing >
        • Riese Hearing
      • Supplemental Security Income/ SSI >
        • Applying for SSI
        • Documents for SSI
        • Process and Appeal
        • Award Letter
        • Rep Payee
        • SSI Amounts 2018/2019
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose