(Mendocino County Super. Ct. No. 0925373) Conservatorship of Christian G. Trial Court: Mendocino County Superior Court Trial Judge: Hon. Jonathan Lehan
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
The difficult question ultimately presented by this case is whether a four-year-old developmentally-delayed, possibly autistic child should be kept under the guardianship of his ex-convict uncle and his wife, who both have a history of substance abuse, or whether he should be returned to his father, who appears to be mentally ill. The issue before this court, however, is a procedural one, which does not resolve that question.
John G., the father of Christian G.*fn1 (Chris), appeals after the probate court appointed John's brother, Mark G., and Mark's wife, Tina, as guardians, a guardianship he contested all along, claiming both that a guardianship was unnecessary and that Mark was not a good choice as guardian due to his criminal history. John's appeal claims that the probate court erred in failing to follow the mandate of Probate Code section 1513, subdivision (c)*fn2 which, in cases involving parental abuse or neglect, requires a referral to the county agency charged with investigating dependency cases so that it may make a decision whether to initiate dependency proceedings.
We agree, and hold that John was deprived of certain procedural safeguards when the probate court failed to refer the case to Child Protective Services (CPS) after it became apparent that Mark's allegations about John's parenting deficiencies amounted to a charge that he was an unfit parent. We thus reverse and remand the case for compliance with section 1513, subdivision (c).
FACTUAL AND PROCEDURAL BACKGROUND
Chris was living with John in Fort Bragg in late April 2009, when Mark, who lived in southern California, visited them, apparently unannounced. As he was driving into town, he saw John's van and found Chris inside, unattended in his car seat. Mark also found John and Chris were living in squalid conditions in a mobile home so stacked full of trash―in hoarder mode―that the actual living space was reduced to about four feet by four feet. John had hooked Chris into a harness attached to a leash, staked out in the yard.
The only heater was an open oil burning stove, which was dangerous for a child. Chris's hair was so matted in the back that it was "unbrushable." Chris's diapers were soaked through to his pajamas, and at another point he was dressed only in a diaper when it was cold outside. Mark bought fresh diapers for Chris during that visit.
Mark noticed that Chris did not respond to hugs and kisses, was withdrawn, and appeared to be developmentally delayed in that he did not yet speak (though he was more than three years old). Although most often withdrawn, Chris also threw tantrums when frustrated.
Mark returned home and talked to his younger brother, Ken G., about Chris's circumstances. They decided to visit again, to help John clean the place and help him build a fence so that Chris would not need to be tethered on a leash. In early May 2009, they arrived together at John's home, bringing food, clothes, and bedding. They offered to help John clean his trailer, but John resisted. They found the stench of human excrement in the trailer intolerable, as John had defecated into a plastic bag and left it in the apparently inoperable toilet. John was using the diapers Mark had bought for Chris to mop up a spill in the bathroom. Raw sewage was leaking from the trailer into the yard near where Chris had been tethered.
Ken and Mark contacted CPS and were told that if a relative was available to take custody of Chris, the matter could be handled through a guardianship petition. Mark filed a petition for temporary guardianship. The petition was heard ex parte due to Mark's fear that John would "run with [the] child" if he became aware of the petition. In supporting declarations, Mark and Ken both described problems with Chris's condition similar to those seen by Mark during his earlier visit. Mark called John "unstable," and Ken also noted that John "has had mental health issues for several years."
Mark described his own family without mentioning his criminal record or history of drug problems: "We have a stable home and my wife is a stay at home mother. I have 4 children and am ready to go to any measure to [assure] the [safety] and welfare of Cristian [sic]."
The petition was granted on May 5, 2009, appointing Mark as temporary guardian. Mark secured a sheriff's stand-by order when he went to pick up Chris from John at a Fort Bragg hardware store. Peace officers had to be called to accomplish the transfer of custody.
Mark drove Chris to his home in Santa Clarita, more than 500 miles away, where he lived with his wife, Tina G., and four children in a four-bedroom mobile home in a large mobile home park.*fn3 Chris did not cry or show any emotion upon being separated from John and did not talk during the entire nine-hour trip. After they arrived, Mark and Tina gave Chris a bath and got his hair cut. They took him to a doctor and later had him assessed psychologically, which resulted in a diagnosis of mild autistic disorder.*fn4 They enrolled him in preschool and got him a therapist.
John objected to the guardianship from the outset, both on grounds that it was unnecessary and that Mark was not a good choice as guardian.*fn5
Louis Bates,*fn6 a probate court investigator,*fn7 was designated to investigate the matter. During the initial hearing on June 10, 2009, Bates estimated that he would be able to complete his investigation by January 2010.
When John showed up for the June 10 hearing, he claimed to be represented by an attorney whose office was in Crescent City (Del Norte County). The attorney never appeared on John's behalf, however, and Bates would ultimately report that he had seen a letter from the attorney telling John he could not travel to Fort Bragg to represent him. John said the attorney had told him to ask for appointment of a public defender, since he would have a difficult time representing himself in court. No attorney, however, was made available to him. (§ 1470, subd. (a); Cal. Rules of Court, rule 7.1101;*fn8 see generally Weisz & McCormick, Abandon Probate Court for Abandoned Children: Combining Probate Guardianship of the Person and Dependency into one Stronger, Fairer Children's Court (2003) 12 So.Cal. Rev.L. & Women's Studies 191, 204 (Weisz & McCormick) [attorneys not appointed for parents in probate guardianship proceedings and appointed for children only in court's discretion].)
Bates conducted an investigation of the circumstances of both John and Mark, and recommended placement of Chris with Mark and Tina. John revealed that Chris had been taken from his mother's home and had been declared a dependent in Del Norte County when he was just six weeks old.*fn9 At that time John was described as "mentally ill," "out of control," and "threatening project staff."
Chris's mother relinquished her parental rights during the dependency period. John, however, participated actively, and impressed the CASA advocate with his dedication to parenting Chris. In April 2007, the CASA advocate reported that John and Chris had bonded, that Chris had "a nice crib," and the house was "neat, not cluttered or dirty." Chris was returned to John's custody at the age of 18 months. Since then John and Chris had lived approximately 18 months in Crescent City and the remaining months in Fort Bragg.
From Mark, Bates learned that John had entered the military as a young man, but went AWOL before he was deployed. From that point on, according to Mark, John had psychological problems that resulted in a diagnosis of paranoid schizophrenia. Mark claimed he knew this because their mother had helped John fill out his SSI application. Mark said John had previously been on medication, but when he stopped taking it his illness became worse.
John denied being a paranoid schizophrenic and denied that he had ever been on medication for schizophrenia. He acknowledged having posttraumatic stress disorder (PTSD) due to work stress several years after he left the military, but claimed it was under control. He ultimately produced documents showing a PTSD diagnosis and an honorable discharge from the Army. Whatever the correct diagnosis, Bates believed John's own mental illness made him incapable of understanding Chris's needs and following through with services to meet those needs.
According to John, if Chris was developmentally delayed, it was because he was bounced around from one foster home to another during the dependency and never developed the bond with his caregivers that would have fostered normal development. The CASA advocate during the earlier dependency did note that the foster mother did not pick Chris up and hold him because he supposedly did "not like to be held." There was also a psychologist's report to back up John's claim that Chris suffered from "attachment disorder."
John also told Bates that Mark himself would not make a good guardian because Mark had a relatively serious criminal history, including several "strikes." He also claimed that Mark's efforts to take Chris away from him stemmed from a lifelong sibling rivalry which had often resulted in Mark physically attacking John.
Bates reviewed records showing that Mark had spent approximately nine to ten years in prison for two robberies, including one involving a weapon, evidently related to Mark's substance abuse (methamphetamine and cocaine). At the time of the guardianship proceedings, however, Mark had been clean and sober for five years.
Mark initially met Tina in a 12-step program. She was reported by Bates and other observers to be a strong and stable influence in Chris's life, with consistent parenting skills and a commitment to raising Chris despite his disability. Tina also had a drug-related criminal record but had been in recovery for nearly six years.
Bates concluded that Mark and Tina had turned their lives around, would provide a good home for Chris, and were committed to providing the long-term care required for a special needs child. Mark and Tina expressed an "absolute commitment to whatever it takes to get the kind of treatment that [Chris] needs." Based on Bates's report, there can be no doubt that Chris thrived in the care of Mark and Tina, who provided necessary and desirable services.
One major thrust of Bates's report was that Chris was more seriously disabled than John would admit, and that John had not, from at least September 2008 to May 2009, provided the necessary services for Chris to flourish. When confronted with mounting evidence that Chris's problem was more serious than he had previously acknowledged, John blamed it on the fact that Mark and Tina had vaccinated him, which John opposed. John, apparently with "[m]any folks," erroneously believed vaccinations could cause autism.
Bates severely criticized John for refusing to accept Chris's true diagnosis, characterizing it as "clearly a form of neglect." Bates concluded that John's denial of the seriousness of Chris's condition would hamper him in parenting Chris with the consistency and focus required to raise a special needs child. Ultimately it was John's reluctance to accept a diagnosis of autism, as well as John's own mental health issues, that led Bates to conclude that a guardianship was necessary.
John showed some reluctance to accept the autism diagnosis during his testimony, but he acknowledged in his documentary submission that Chris's developmental delays "may be a case of Autism," and said he was willing to do whatever was necessary for Chris's future welfare.
As for John's mental health, Bates seemed to conclude that John suffered from a mental disorder more serious than he wanted to admit. Bates described John's dialogue as "rambling" and his reactions during their interviews as "almost hysterical." John went off on "tangents" and had "difficulty in staying focused." Indeed, John demonstrated these tendencies during his testimony in court. Bates concluded that John suffered from a mental illness, and as a result could not properly care for Chris.
A hearing on permanent guardianship was conducted on February 10, 2010. During the hearing, Mark reported in more detail the unsanitary and unhealthful conditions in which he found Chris during his visits in April and May 2009. He also described unsanitary conditions, primarily a dirty crib, he had observed the preceding Thanksgiving in John's home. At that time Mark and Tina bought sheets and other provisions for Chris.
John, however, gave explanations for the conditions that existed in his home, both in testimony at the hearing and in an eight-page document entitled "Objections and Corrections to Guardianship Report of Louis Bates," together with numerous attachments (a total of 60 pages), which he prepared and filed before the hearing. John suggested Mark had greatly exaggerated the problems. He claimed he had neglected to enroll Chris in available services for six months because of difficulties with his living situation and finances, but he was willing to make sure Chris got appropriate medical services in the future.
John also said that Chris failed to respond to Mark's hugs because Chris barely knew Mark, and they had spent very little time together. Also, John had only recently moved into his trailer from a different living arrangement, which helped to explain the boxes stacked up in his trailer. He said he had staked Chris outside only so that Chris would not run off while the neighbor was mowing the lawn with a new red ride-on mower, which had attracted Chris's attention and could present a danger to him. The yard was not yet fenced, but John planned to build a fence. John also explained that Chris had a habit of twisting his finger in the back of his hair, which explained its matted appearance.
John's 60-page submission included many photos of Chris in cleaner and happier circumstances than Mark described; it also included several letters praising his parenting ability. John produced a certificate showing he had attended parenting classes. Chris's biological mother wrote a letter in his support, saying, "John's a good father" and "Christian is closest to his father, more so than anyone else." One of the letters of ...