In re D.C.

Filed 7/18/06 In re D.C. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from orders of the Superior Court of Los Angeles County, Valerie Skeba, Referee. Affirmed as to B188257; dismissed as to B185731.

Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Pamela S. Landeros, Deputy County Counsel for Plaintiff and Respondent.

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In these consolidated appeals arising from a dependency proceeding, mother M. H. challenges orders denying her petitions under Welfare and Institutions Code section 388[1] through which she sought to show changed circumstances warranting additional reunification services or return of her children to her home. The first appeal (B185731) sought review of a dependency court order denying her section 388 petition without a hearing. That appeal was rendered moot by the dependency court's denial, following a full hearing, of a later section 388 petition by mother, brought on nearly identical grounds, which is the basis for the second appeal (B188257). We dismiss the appeal in B185731 as moot and affirm the order denying mother's section 388 petition in B188257.

FACTUAL AND PROCEDURAL SUMMARY

Mother has three children who were the subjects of this dependency proceeding: D.C. (born August 1998), F. C. (born July 1999), and J. C. (born November 2000). The original petition under section 300 was filed by the Department of Children and Family Services (DCFS) in August 2002, and was superseded by a first amended petition filed one month later. The sustained allegations of the first amended petition alleged that the children were endangered by mother's history of substance abuse; mental problems, including suicidal ideation; failure to provide routine immunizations; and physical altercation with father in 1999. The children were detained and placed with the paternal grandmother, Maria C. Mother's family reunification plan required her to participate in individual counseling including parenting, drug counseling, and random drug testing. She was given monitored visitation with the children.

Mother's compliance with her plan was uneven. At the six-month review hearing, the dependency court found mother in compliance based on evidence that she had completed a six-week parenting class, had enrolled in Project Impact, had tested negative, and had been visiting the children. The court ordered six months of additional services to mother. But by the 12-month review on November 19, 2003, the court found mother was no longer in compliance with her program. She had failed to maintain regular contact with the DCFS social worker, was not testing regularly, and had not complied with the terms of monitored visitation, although she had consistently visited the children. The court found mother not in compliance, terminated services, and set a section 366.26 hearing for March 2004.

A month later, Maria C. asked DCFS to remove the children from her home because her family situation had changed and she had to move to a smaller home which would not accommodate them. The parties stipulated to a section 387 petition alleging Maria's inability to care for the children. The children were placed in foster care.

During 2004 mother made progress. She visited and telephoned the children consistently, tested negative, and enrolled in domestic violence classes and individual counseling. In September 2004, over DCFS's opposition, the juvenile court granted mother's section 388 petition. Mother had completed 16 weeks of anger management classes; a parenting class; 41 group sessions, 9 individual sessions, and 60 Narcotics Anonymous meetings for her substance abuse problem; had tested negative for six months; and had a job and a home for the children. The court vacated the section 366.26 hearing date and ordered mother to continue with counseling and testing. Mother was given four hours of monitored weekly visits with the children.

Mother's positive performance suffered a reversal in January 2005. She had been dropped from her program for poor attendance and had missed several drug tests. After being the victim of an armed robbery at the restaurant where she worked, mother quit her job. She missed four visits with the children in December and January. She told her counselor that she was depressed and that was why she was not attending her program. A DCFS inspection of mother's home revealed several conditions which would pose dangers to the children if they were returned to her custody, including broken glass and rusted furniture in the backyard. DCFS again asked the court to terminate reunification services.

By the date of the status review in April 2005, mother had been diagnosed with major depression. She was on medication for the condition and was enrolled in the Shields Eden Dual Diagnosis Program for mental health and substance abuse issues five days a week, for seven hours a day. The program required nine to 12 months of attendance as the participant progressed through different levels of treatment. Mother was remodeling her home to make it appropriate for the children but the work was not yet complete. DCFS recommended termination of reunification services. The court continued the case for a contested hearing in May 2005.

DCFS reports in May 2005 revealed problems with mother's parenting during visits. Mother testified at the contested section 366.22 hearing on May 16 and 17, 2005. She admitted that she had relapsed and used methamphetamine in December 2004 or January 2005 when she was very depressed. Antidepressant medication and her program at Shields Eden were helping. The court noted mother had been making progress for three months, but concluded that this was not sufficient since she had been offered services for three years. The court again terminated reunification services and set a permanency planning hearing under section 366.26.

Mother filed a new section 388 petition in August 2005. She sought return of the children or re-establishment of reunification services. Mother alleged she had a safe home for the children; had completed the dual diagnosis treatment program, an additional parenting class, and extensive counseling; and had visited the children consistently. She had a strong bond with the children. She was in the third phase of treatment, attending aftercare support groups, 12-step meetings, and was seeking vocational training and employment. The petition was denied without a hearing. Mother appealed from this order (B185731).

In September 2005, mother filed another section 388 petition on the same grounds. This petition attached letters from mother's sister and maternal grandmother regarding their observations of visits with the children. Mother also attached a letter from her parenting instructor stating his opinion that she would be a model parent based on the skills she had learned. She had arranged for the children to participate in an after school program in which parenting instructors and counselors would help develop her parenting techniques and increase bonding between mother and children. Mother's recovery sponsor wrote to say that mother had demonstrated her willingness to continue in recovery and offered support from the recovery group.

A November 2005 DCFS report stated that the children were ready for adoption. It recognized that mother had completed court-ordered parenting classes, drug counseling, 22 negative tests, anger management and domestic violence classes. Mother had weekly visits and telephone calls with the children, but the social worker concluded that she continued to have difficulty in parenting the children. DCFS concluded that while mother had committed herself to her reunification programs over the last six months, the children had detached themselves from her over the previous two years.

The dependency court acknowledged mother's progress in addressing her issues, but observed that the problem was that it took too much time. The court observed: â€