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In re T. M.

July 17, 2009

IN RE T. M., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
C. M., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Dean L. Petersen, Juvenile Court Referee. Reversed with directions. (Super. Ct. No. JD226226).

The opinion of the court was delivered by: Cantil-sakauye, J.

CERTIFIED FOR PUBLICATION

C.M., mother of the minor, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 Appellant contends the court could not terminate her parental rights because it found that no reunification services were provided to her. We reverse.

FACTS

The Department of Health and Human Services (DHHS) removed the newborn minor from appellant's custody in August 2007 following appellant's detention on a psychiatric hold pursuant to section 5150. The social worker was unable to contact appellant at the mental health facility and appellant did not contact the social worker prior to the detention hearing in the juvenile court.

According to the jurisdiction/disposition report, appellant called the social worker several times but did not leave any contact information and appellant's whereabouts were unknown. Appellant had ongoing mental health problems and it became apparent during the social worker's investigation that appellant was also abusing drugs. DHHS recommended denial of services to appellant pursuant to section 361.5, subdivision (b)(1), because her whereabouts were unknown and she had failed to come forward to be assessed for services. If appellant did come forward during the next six months, the social worker intended to assess her needs and develop a plan at that time. A declaration of due diligence in the search for appellant was attached to the report.

At the jurisdiction/disposition hearing, there was discussion about whether to make the findings to support denial of services pursuant to section 361.5, subdivision (b)(1) because the DHHS intended to offer appellant services if she contacted the social worker. However, the court did adopt the previously recommended findings which supported denial of services pursuant to section 361.5, subdivision (b)(1) and no case plan was developed. The court set a six-month review hearing.

The report for the six-month review hearing stated that a therapist from a psychiatric facility in Fresno contacted the social worker in October 2007 and told the social worker appellant had been a patient there but had been discharged. The therapist was unable to provide contact information for appellant. In November 2007, a public defender from Fresno called and told the social worker appellant was in a locked psychiatric facility. A conservator had been appointed for appellant because she was unable to care for her own basic needs. Prior to establishment of the conservatorship, appellant was placed on multiple psychiatric holds during September and October of 2007.

Because appellant was receiving a broad range of services in the psychiatric facility, no case plan was developed and the social worker simply instructed appellant to comply with her treatment goals. Appellant's counselor reported that appellant had made no progress in treatment since she refused to participate and address her treatment goals. Appellant had been approved for a year of treatment in the locked facility. Appellant also called the social worker and provided the name of her conservator. The six-month review hearing report recommended termination of services.

Counsel was appointed to represent appellant. At the six-month review hearing, appellant's counsel observed that services were not offered to appellant pursuant to section 361.5, subdivision (b)(1) because appellant's whereabouts were initially unknown. Counsel further stated that no plan was developed when appellant was located because she resided in a facility which provided appropriate services to her. According to counsel, appellant's conservator's assessment was that appellant could not meaningfully participate in services and counsel requested the court to amend the recommended findings and orders to reflect that no services were previously ordered. The court granted the request and made the appropriate changes to eliminate any findings to the contrary.*fn2 The court set a section 366.26 hearing over appellant's objection. Notice of her right to review the order by writ was mailed to appellant, her conservator, and her guardian ad litem.*fn3

The report for the selection and implementation hearing stated there had been no contact between appellant and the minor since the minor was placed in protective custody. Appellant had a new conservator who told the social worker appellant was diagnosed with a psychotic disorder, visitation with the minor would not be constructive and appellant's anger issues might make visits harmful for the minor.

At the hearing, appellant's counsel entered a general objection to termination of parental rights. The court adopted the recommended findings and orders, terminated parental rights, and freed the minor for adoption.

DISCUSSION

Appellant argues the order terminating parental rights must be reversed because it violated the provisions of section 366.26, subdivision (c)(2)(A). (See also Cal. ...


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