In re Armando J.

Filed 7/31/06 In re Armando J. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE

APPEAL from an order of the Superior Court of Los Angeles County, Steven Berman, Juvenile Court Referee. Reversed and remanded with directions.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Senior Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

Eva G. appeals from an order made under Welfare and Institutions Code section 364,[1] terminating jurisdiction as to her four older children. We reverse the order and remand the case to the trial court with directions.

FACTS

Eva G. (mother) is the mother of Armando J., born in 1992, twins Maria and Richard J., born in 1993, Bianca R., born in 1998, and Joann R., born in 2000. Armando R. J. (father) is the father of the four older children. Henry R. is Joann R.'s father.

Mother and father married in 1994. They separated in 1998. After Joann was born, Henry R. hit mother and kidnapped Joann. He was caught and incarcerated. Mother became involved with Rigoberto D. (Rigo), who lived on and off with her and the children.

In October 2003, mother was diagnosed with ovarian cancer and began chemotherapy. She was unable to care for the children and, on June 2, 2004, she requested that the children be placed in foster care. The Department of Children and Family Services (DCFS) filed a petition under section 300 on June 9, alleging that mother was unable to care for the children due to alcohol abuse and domestic violence between her and Rigo in the children's presence, that she left the children alone, and that she failed to provide medical treatment for Maria.

Father wanted custody of the children. He had a prior arrest for domestic violence, but he had completed domestic violence classes. The children previously had been in his custody, but he had allowed them to go on vacation to Mexico with mother. When she returned, she kept the children from him.

At the detention hearing, the juvenile court found DCFS had established a prima facie case for detention. It released Armando, Maria, Richard and Bianca to father's care and placed Joann in foster care. It allowed mother monitored visitation. It issued a restraining order against Rigo.

For the jurisdictional/dispositional hearing on July 29, 2004, DCFS reported that mother admitted a violent relationship with Rigo. Mother explained that she began drinking when she was diagnosed with cancer; she used marijuana to alleviate the side effects of chemotherapy. DCFS reported that mother had tested positive for amphetamine and methamphetamine. Mother also was homeless at the time.

DCFS also reported that Armando and Richard wanted to live with father. Maria was uncertain as to who she wanted to live with.

The juvenile court sustained the petition and declared the children to be dependents of the court. It ordered that Armando, Maria, Richard and Bianca remain with father and Joann be suitably placed. It ordered DCFS to provide mother with reunification services.

After six months, mother was only in partial compliance with her reunification plan. She was not visiting the children on a consistent basis. She had enrolled in but not completed parenting and anger management programs. She had not enrolled in a drug program, and she was not drug testing. At the continued six-month hearing, mother's attorney reported that mother had entered a residential treatment program.

At a section 364[2] hearing on July 21, 2005 as to the four older children, DCFS reported that mother was in a residential treatment program designed for single mothers with children. The program included individual counseling. Mother was participating in drug, parenting, anger management and domestic violence programs. In addition, she was testing negative for drugs.

The court granted mother unmonitored visitation. When father's attorney told the court that mother was still in contact with Rigo, the court ordered that Rigo not be present during visitation. The court also ordered that mother and the children participate in conjoint therapy, and that mother and father attend Parents Beyond Conflict.

At the August 26, 2005 hearing, DCFS reported mother was complying with her case plan. Armando and Richard wanted to remain with father, while Maria and Bianca wanted to live with mother. Father wanted the children to remain with him. The court granted DCFS discretion to allow mother overnight and weekend visits and continued the hearing.

In a written report prepared for the December 7, 2005 section 364 hearing, DCFS reported that mother was in compliance with her drug treatment plan; she had completed an inpatient program and was participating in an outpatient program. She had completed a domestic violence program and Parents Beyond Conflict.

Mother had missed two drug tests in November, however. DCFS also reported that while mother had been given overnight weekend visitation with the children, DCFS discontinued overnight visitation on November 15 after hearing that mother had allowed Rigo to be present during the visits. Additionally, mother did not have a suitable home but was renting a room. For these reasons, DCFS recommended that the children remain with father.

When the case was called for a hearing, mother was not present in the courtroom. Her counsel, Victoria Doherty , requested: â€