In re Matthew R.

Filed 7/12/06 In re Matthew R. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from an order of the Superior Court of Los Angeles County. David S. Milton, Judge. Affirmed.

Lori A. Fields 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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Maria F. appeals the juvenile court's order terminating her parental rights to four of her children, Matthew R., Carlos V. Jr., Juliette V. and Genesis V. Specifically she complains: (1) the Department of Children and Family Services (DCFS) failed to properly serve notice of the Welfare and Institutions Code^[1] section 366.26 hearing on her two eldest children, E. M. and I. M., and therefore, Maria F. was precluded from proving the sibling relationship exception to the termination of parental rights in section 366.26, subdivision (c)(1)(E); (2) the court failed to continue the section 366.26 hearing once it appeared E. M. and I. M. did not receive notice of the hearing; and (3) sufficient evidence did not support the court's finding that Genesis V. was adoptable in view of the toddler's health problems. These claims lack merit. First, Maria F. has not convinced us she was directly and immediately aggrieved by the failure to provide the notice to E. M. and I. M. of the section 366.26 hearing and Maria F. did not make any effort to assert the sibling exception at the termination hearing. Second, no one requested a continuance based on lack of notice to the siblings. Finally, sufficient evidence supported the court's finding as to Genesis V.'s adoptability. We, therefore, affirm.

FACTUAL AND PROCEDURAL HISTORY

On July 14, 2003, Maria F. and her children Matthew R. (then 4 years old), Carlos V. Jr., (then 2 years old), Juliette V. (then 6 months old), E. M. (then 12 years old) and I. M. (then 11 years old), came to the attention of the DCFS when E. M. called the police to report an incident of domestic violence between Maria F. and her male companion, Carlos V. Sr.[2] At the time of the altercation, Maria F. was intoxicated. When the police questioned E. M.'s sister I. M., she told police that in addition to witnessing violence in the home, Carlos V. Sr. had sexually molested her. Police arrested Maria F. and Carlos V. Sr., and took the children into protective custody.

The DCFS filed a petition pursuant to section 300, subdivisions (a), (b), (d), (i) and (j) alleging Maria F. and Carlos V. Sr. had engaged in domestic violence, that Maria F. abused alcohol and could not care for her children, and that Carlos V. Sr. had sexually abused I. M., all of which put all five of the children at risk of harm.

The children were ordered detained and placed in three different foster homes administered by the same agency, with E. M. and I. M. placed in a home together separate from the younger children. E. M. and I. M., through counsel indicated that they were worried about their younger siblings, missed them and were concerned their younger siblings would be adopted. The court ordered the department to make every effort to place all five children together, preferably with a relative. The court also ordered weekly sibling visits and monitored visits with Maria F.

By late August 2003, it was determined that a relative placement for all five children was not possible, however, the three boys had been placed together in one home and I. M. and Juliette V. were in a second foster home.

The disposition/jurisdiction report indicated that both I. M. and E. M. had confirmed Carlos V. Sr.'s sexual abuse of I. M., and that Maria F. abused alcohol. It also disclosed that Maria F. had not visited the children and that Maria F. was pregnant.

In late August the matter was continued for a mediation followed by adjudication. By late September 2003, the DCFS' interim report stated E. M. and I. M. had been placed with their paternal grandmother. The report further stated that sibling visits had been arranged.

On October 22 and 23, 2003, the petition for the five children was resolved through mediation--the parties agreed on amended language in the petition and disposition orders. The court adopted the mediation agreement and sustained the petition, under subdivisions (b), (d) and (j). The court declared the children dependents of the juvenile court, removed them from the custody of their parents and ordered family reunification services. The court also ordered Maria F. to complete domestic violence counseling, alcohol abuse counseling and random testing and sexual abuse counseling for non-offenders. She was also given monitored visits.

On October 15, 2003, Maria F. gave birth prematurely (at 26 weeks gestation) to Genesis V. The newborn was hospitalized and not expected to be released until January 2004. The DCFS filed a petition to declare Genesis V. a dependent, asserting the same allegations as alleged for the older children. The juvenile court ordered Genesis V. detained at the October 23, 2003, hearing. On December 1, 2003, the court sustained the petition concerning Genesis V. Maria F. was ordered to participate in the same reunification programs as were ordered in connection with the older children and given monitored visitation with the infant.

By the six-month status review in March 2004, the DCFS reported that Maria F. had several positive drug tests and had been discharged from her treatment program. It also indicated that Maria F. had monitored visits with the children.

The report further disclosed E. M. had been removed from the parental grandmother's home because of behavioral problems and that he had been placed in a group home. It also indicated that E. M. was having difficulty adjusting and having problems in school and at the group home, including non-compliance with rules, use of profanity, vandalism and incidents of being AWOL. A quarterly report from E. M.'s therapist revealed that E. M. had enjoyed his biweekly visits with his mother and siblings and that E. M. had a â€