Metropolitan News-Enterprise


Monday, April 26, 2010


Page 3


Dependency Proceedings Involving Disabled Mother Revived


By Steven M. Ellis, Staff Writer


The Fourth District Court of Appeal on Friday published its ruling that a juvenile court judge erred when he dismissed a dependency proceeding over concerns that it was unfairly based on assumptions about a mentally and physically disabled woman’s ability to care for her child.

Div. One ruled March 30 that the woman’s no contest plea in response to a petition alleging a substantial risk of harm to her child precluded her from seeking reconsideration of jurisdiction after the court denied a second petition based on a different statute.

Imperial Superior Court Judge Juan Ulloa, after concluding that allegations in a Welfare and Institutions Code Sec. 342 petition were not sustained, reconsidered his earlier Sec. 300 jurisdictional findings and dismissed proceedings involving “Andrew A.,” the son of “Stacy G.”

Stacy gave birth to Andrew in June 2009 in an Imperial County hospital, but hospital personnel were concerned she might not be capable of caring for the child because of her physical and mental disabilities.

Stacy reported to an investigating social worker that she had “a history of scoliosis, learning disabilities, bi‑polar, schizophrenia, and multiple personalities,” and attributed her lack of memory as to the identity of Andrew’s father to “being mentally challenged.”

One hospital nurse reported that she doubted whether Stacy “is capable of understanding simple instructions,” and another expressed concerns about Stacy’s ability to care for a child because she “did not have common sense” and had almost tipped over the child’s crib when grabbing onto it to steady her balance.

According to Stacy, she lived alone, but was able to care for herself with the assistance of her sister, who checked in on her almost daily.

The Imperial County Department of Social Services declined to allow the child to go home with Stacy and, after what it deemed were unsatisfactory meetings with Stacy and her sister, brought a Sec. 300 petition alleging Stacy was unable to provide regular care for the child.

At a July 6, 2009,  hearing, Stacy indicated she was willing to plead no contest “with the understanding of receiving family maintenance services, [and the] return of the child today to her with the assistance of her sister.” Ulloa accepted the plea and returned Andrew to Stacy and her sister.

The department, however, removed Andrew from Stacy’s custody later that month and filed a Sec. 342 petition alleging Stacy had failed to comply with the previous order, that Andrew was mostly in the care of Stacy’s sister and that the sister’s home presented unsafe living conditions.

Ulloa determined that the latter allegations were not sustained and ordered the child returned, and Stacy moved for reconsideration of his conclusions as to the earlier petition. After an 18-minute recess, Ulloa held a hearing where he granted the motion and dismissed the proceedings.

Commenting that the department had jumped to conclusions based on assumptions, not evidence, he said:

“I am embarrassed that I sustained this petition. I am embarrassed that I did not look at this young lady as a real person with real feelings and real emotions….We didn’t give her a chance. We didn’t offer her help. We removed the baby and said you are too stupid to have this baby. What gives us the right?”

But on appeal, Justice Joan Irion wrote that Ulloa’s decision was error not only because the no contest plea barred Stacy from seeking reconsideration without first setting the plea aside, but because the 18-minute recess was insufficient notice that the matter would be addressed.

Concluding both errors constituted a reversible miscarriage of justice because there was a reasonable probability the outcome would otherwise have been different, Irion said remand was required to hold a disposition hearing on the first petition. At that time, she added, consideration as to whether dismissal was required would be warranted.

Justices Alex C. McDonald and Cynthia Aaron joined Irion in her opinion.

The case is In re Andrew A., D055956.


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