In re Angel M.

Filed 7/20/06 In re Angel M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from orders of the Superior Court of Los Angeles County, Herbert J. Garcia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant, Marco M.

Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant, Lilian G.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

___________________________________________

In this juvenile dependency case, the parents of a toddler challenge an order that denied the mother's section 388 petition to modify a disposition order that removed the child from the parents' care. They also challenge the order that terminated their parental rights to that child. Our review of the appellate record enables us to say that clearly the trial court committed no error when it made the challenged rulings. Therefore, the orders will be affirmed.

BACKGROUND OF THE CASE

1. The Parents and Their Children

The appellant mother, Lilian G. (Mother), has four children in this dependency case. The minor girls Gabriela G. and Graciela G. are eight and six years old, respectively, and were five and three years old when the case was initiated. Angel M. (born in February 2004), was a newborn at the time the case was opened, and is now two years old. Francisco M., who was born to Mother during the pendency of the case (in May 2005), was placed in her care by a home of parent order after the court determined he too was a dependent child of the court. Only Angel is the subject of this appeal by Mother.

The appellant father, Marco M. (Father Marco), is the presumed father of Angel and the declared father of Francisco. Only Angel is the subject of this appeal by Father Marco.

Gary G. (Father Gary), is the father of Gabriela and Graciela. He and Mother were married when Angel was born but they were living apart and their children were living with Mother.

2. The Initiation of This Case

Angel and his two half-sisters came to the attention of the Department of Children and Family Services (the Department) when he was born with cocaine in his system. Mother tested positive for both cocaine and marijuana at that time and she had a history of illegal drug use, including admitting to using drugs three times in January 2004, the month before Angel was born.

At the detention hearing on February 13, 2004, the court found a prima facie case for detaining the three children. The Department was ordered to provide family maintenance services for Father Gary in whose care Gabriela and Graciela were placed, and family reunification services for Mother. Father Marco had not yet appeared in the case. Father Gary was living with his schizophrenic brother, the girls' paternal uncle.

On February 25, 2004, a first amended petition was filed by the Department. The following allegations in that amended petition were later sustained by the dependency court. Mother has a history of drug use and Angel was born with drugs in his system. Mother and Father Gary have a history of domestic violence, including his striking Mother, and the minor girls have been exposed to this violence. Also, Father Gary was arrested on February 19, 2004, on a warrant related to domestic violence charges and he left the minor girls in the care of their schizophrenic paternal uncle without telling the uncle when he would return, or making suitable arrangements for the care of the girls, and the uncle is unable and willing to care for the minors. When the girls were discovered to be living with only the uncle, the temperature of the house was very cold, the girls were clothed only in their underwear, and there was no food in the house. Also, the house was found to be filthy and unsanitary. On numerous occasions the minor child Graciela suffered physical abuse by Father Gary, including being struck with a belt, and Mother failed to protect the minor child. Father Marco, Angel's father, was arrested and sentenced in July/August 2003 on drug charges, and was currently on probation.

A second detention hearing was held on February 25, 2004. The dependency court again found a prima facie case for detention of all of the minors, and placed temporary custody of them with the Department. The minor girls were removed from Father Gary's care and placed in a foster home, but not the one in which Angel was living. The court ordered monitored visitation for the parents. The Department was ordered to provide family reunification services.

3. The Pretrial Resolution Conference/Disposition Hearing

The Department's jurisdiction/disposition report states that there is a child welfare history for the minor girls. In February 2003 a referral was made alleging the sexual abuse of Gabriela, and Graciela being at risk because of it. The referral was substantiated on both allegations. The abuse occurred at the home of the children's then-baby sitter and was perpetrated by a Juan Hernandez.

The minor girls told the dependency investigator that Father Gary hits Mother a lot and once when the family was in a car, he hit Mother and caused her to hit her face on the car window and bleed. Gabriela tried to stop Father Gary from hitting Mother but he pushed Gabriela into the back seat and hit her with a seatbelt which caused a scratch on her arm. The children stated the police had been called to the family home twice for domestic violence.

Mother admitted to being injured by Father Gary (although she said it was when he pushed her against a wall). She acknowledged that the minor girls have been present when Father Gary struck her and that the police were twice called to the family home. He was arrested on one of those occasions. She denied that he hit the girls.

Regarding the allegation that Father Gary physically abuses Graciela, including hitting her with a belt, the girls indicated he hits both of them, sometimes with a belt or a sandal and it hurts a lot and they cry. He hits Graciela more often.

Concerning the allegation that Mother's drug use endangers the children, both Mother and Father Marco stated Mother did not take drugs in front of the minor girls. Mother admitted to using cocaine and marijuana for a year.

Regarding the allegation that Father Marco's drug use endangers the children's health and safety, Mother stated that Father Marco stopped using drugs, he had previously only used them once in a great while, he wants Mother to stop using drugs, he was doing well in his probation program, and he wants them to help each other get over drugs. Father Marco indicated he was participating in the drug program the criminal court sent him to, had not used drugs since his arrest, and he tests clean each time.

Mother stated she was willing to do what it takes to reunify with her children. Father Marco stated he was not in a position to care for the infant Angel because he had no job, but he was willing to do what the dependency court ordered to help him become a better father and would work with Mother to bring the children back to her.

At the March 10, 2004 pretrial resolution conference/disposition hearing, Father Gary was found to be the presumed father of Gabriela and Graciela, and Father Marco was found to be the presumed father of Angel. Mother, Father Gary, and Father Marco all pleaded no contest to the amended petition.

The court sustained the allegations in the amended petition as was indicated above. The court declared the three minors dependent children under section 300, subdivisions (a), (b) and (j), and the minor girls also dependent under subdivision (g) of section 300. The court found removal of the children from their parents' custody was necessary for their protection, and custody was taken from the parents and placed with the Department. The parents were granted monitored visitation with a Department approved monitor, and reunification services. The Department was given discretion to liberalize visitation for any of the parents who were complying with court orders and their case plan.

Mother was ordered to Department approved programs of (1) drug rehabilitation with random drug testing on demand and an aftercare program with continued drug testing on demand, (2) individual counseling to address both domestic violence and anger management in the same counseling program, and (3) parenting classes.

Father Marco was ordered to complete 10 clean random drug tests, and if he tested dirty or missed a test, then to complete a full drug rehabilitation program with random drug testing on demand, and further ordered to attend a Department approved program of parent education, and to comply with the terms of his criminal court probation.

The parents were ordered to keep the Department informed of their addresses and telephone numbers, and the Department was ordered to provide them with bus passes and to make every effort to place all three of the minor children with the same caretaker.[1]

A week after the pretrial resolution conference/disposition hearing, the social worker gave Mother referrals for all of the programs the court had ordered for her, and advised Mother to enroll in the various programs as soon as possible.

4. Mother's Progress Prior to Termination of Her Reunification Services

The Department's reports reveal the following information regarding Mother's progress, prior to termination of her reunification services (on November 4, 2004), in complying with her case plan.

a. Drug Rehabilitation

The case social worker received notification from a drug rehabilitation program (Los Angeles Resurrection Program) that Mother enrolled in its in-patient program on March 28, 2004, but then left the program on March 30 without any explanation. The social worker spoke with Mother on April 1 and Mother explained she left because â€