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In re S.R.

May 1, 2009

IN RE S.R. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
M.M. ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of Sacramento County, Scott P. Harman, Juvenile Court Referee. Reversed. (Super. Ct. Nos. JD224910, JD224911, JD224912).

The opinion of the court was delivered by: Nicholson , Acting P. J.

CERTIFIED FOR PUBLICATION

The parents of the minors appeal from orders of the juvenile court terminating their parental rights and granting a petition for modification. (Welf. & Inst. Code, §§ 366.26, 388, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellants contend the juvenile court abused its discretion in granting the petition to modify the prior order for a bonding study. We agree and reverse both the order vacating the bonding study and the order terminating parental rights.

FACTS

In October 2006, the Department of Health and Human Services (DHHS) removed the three minors, all six years of age or younger, from parental custody due to domestic violence in the home and appellants' failure to protect the minors. Both parents speak Spanish and require interpreters. Visits were to be supervised by a Spanish-speaking observer. The juvenile court ordered reunification services for the parents but, after 18 months, the parents failed to reunify and services were terminated April 21, 2008. Both parents asked the court to order a bonding assessment. The minors' counsel took no position on the issue. Counsel for DHHS stated a bonding assessment would provide useful information and did not object to the request. The court agreed and ordered the assessment.

On June 25, 2008, DHHS filed a petition for modification of the order for a bonding study. The petition stated that the parents were referred for the study on April 29, 2008, to Dr. Jayson Wilkenfield. Dr. Wilkenfield had declined the referral because he was not Spanish-speaking and thus would be unable to "detect and appreciate the significance" of the subtleties of the parent-child interaction and perform an adequate assessment of the parent-child bond. The psychologist had "called a number of [his] colleagues" but had been unable to find a qualified Spanish-speaking professional in the Sacramento area to whom the case could be referred.

The hearing on the petition for modification was held July 18, 2008. The court inquired whether DHHS had investigated local resources to find a Spanish-speaking psychologist. The social worker told the court the person who dealt with DHHS service contractors had made inquiries but the social worker was not sure who she had called. The social worker told the court the county had a contract with the University of California at Davis and assumed that entity had been contacted but no one had been found to conduct the study. The social worker reported that Dr. Wilkenfield said that it would be impossible to get useful results using an interpreter to do the study. The court was concerned about the lack of first-hand, specific information presented and continued the hearing so that DHHS could show it had contacted specific hospitals and universities to determine whether they had staff qualified to perform the bonding study.

DHHS filed an addendum report on July 24 which stated the social worker had contacted Dr. Blake Carmichael, of the University of California at Davis Medical Center, and was told the facility currently had no Spanish-speaking professionals able to conduct a bonding study. The social worker had called the psychology department at California State University at Sacramento and found it was closed for the summer. Finally, the social worker contacted the psychology department at University of California at Davis and was informed their program was strictly academic and treated only students. At the next hearing, on July 25, 2008, the juvenile court noted that DHHS did not fully comply with the prior orders to detail efforts to find a qualified person to conduct the bonding study and instead provided only incomplete information. The court stated there was no information on whether Dr. Anthony Urquiza had been contacted.*fn1

According to a second addendum, filed August 5, 2008, DHHS contacted six Spanish-speaking clinical licensees in the area, all of whom responded that they were not qualified to perform a bonding study. The addendum reiterated the information from the July report. DHHS had been unable to contact Dr. Anthony Urquiza to determine whether he would be able to perform the assessment.

At the hearing on the petition for modification on August 15, 2008, counsel for each parent argued against granting the petition because there was no showing that there were changed circumstances or that the modification was in the minors' best interests. In ruling on the petition the court stated: "There could probably be a debate as to whether or not this is most properly filed as a [section] 388 motion or if, in the alternative, it is more technically a motion for reconsideration and to vacate a prior court order, but those are ultimately in this case a distinction without a difference which is the issue of should [DHHS] continue to be held to an obligation to follow a court order which appears not to be able to be accomplished. [¶] I will confess that in today's day and age it does seem difficult to believe that no Spanish speaking professional can be retained by [DHHS] to conduct such assessment; however, I do accept the representations from [DHHS] as to each of the efforts that they have made. It is clear that they have contacted numerous professionals within the community as well as the U.C. Davis Medical Center, the psychology departments both at Sacramento State University as well as U.C. Davis and that to date, notwithstanding continuances and further efforts by [DHHS] they have not been able to locate any person who can do such assessment. [¶] This court has previously noted that there is no statutory right to anything called a bonding assessment or, in the alternative, what most professionals more properly delineate as an attachment assessment between the children and parents. [¶] As such[,] the Court does not believe that it is at all fruitful or appropriate to continue the order that such assessment take place. It simply would be a futility at this point apparently[.]" In lieu of the bonding study, the court granted "a fair amount of leeway" in presenting evidence of the minors' attachment to the parents so the court could make a determination as to whether an exception to the preference for adoption applied.

At the subsequent section 366.26 hearing, appellants testified briefly about visitation with the minors. The court found no exception to the preference for adoption and terminated parental rights.

DISCUSSION

Appellants argue the court abused its discretion in granting the petition for modification to vacate the order for a bonding study because the evidence that a Spanish-speaking psychologist qualified to perform the study was not available in Sacramento County did not constitute changed circumstances and there was no evidence the ruling was in the best interests of the minors.

The juvenile court's discretion to order a bonding study arises from Evidence Code section 730 which provides, in relevant part: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court . . . ." ...


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