In re M.F.

Filed 8/31/06 In re M.F. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEALS from an order of the Superior Court of Los Angeles County. David Doi, Judge. Affirmed.

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

Aida Aslanian, under appointment by the Court of Appeal, for Appellant Minor.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Respondent.

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The Los Angeles County Department of Children and Family Services (DCFS) and dependent ward M. F. (hereafter Appellants) appeal from a juvenile court order, made under Welfare and Institutions Code section 366.26,^[1] selecting long-term foster care as the permanent plan for M. F. Appellants maintain that the court's finding of the section 366.26, subdivision (c)(1)(A) exception to the statutorily preferred long-term plan of adoption is not supported by substantial evidence. We find sufficient evidence and affirm.

FACTS

M. F. was born in December 2002. At the time, Precilla O. (mother) was in an outpatient drug rehabilitation program and had lost custody of her three other children after selling drugs from the family home.^[2] On December 26, 2002, mother tested positive for marijuana use after missing meetings of her treatment program. A program counselor saw her breastfeed M. F. after testing positive and notified the Child Abuse Reporting Center. On January 6, 2003, DCFS detained M. F. Mother began a residential drug treatment program on January 7, 2003. There, she had daily random drug testing and weekly visits with M. F., with whom she appeared to be bonding well.

DCFS filed a petition under section 300 alleging that mother had a history of substance abuse, earlier convictions for selling drugs and for cruelty to children, and domestic violence problems that made her unsuitable to raise M. F.^[3] At the section 300 detention hearing on January 9, 2003, the juvenile court ordered no reunification services for mother and father, but granted them monitored visits and ordered DCFS to attempt to place M. F. with appropriate relatives for foster care. Finding no suitable relatives, on February 6, 2003, DCFS placed M. F. in the same foster home as her three siblings.

At a section 300 disposition hearing in early March 2003, DCFS requested no reunification services based on the parents' failure to reunify with their other children. But the agency noted that mother had shown remorse and expressed determination to learn new skills, stay sober, and regain custody of her children. At a later section 300 hearing in April, DCFS produced additional evidence that mother had failed five drug tests for marijuana in 2002 before the December 26 test, and had missed fifteen other tests that year. The parents submitted to, and the court sustained, the DCFS petition. On June 17, 2003, the court declared M. F. to be a dependent of the court, ordered six months of reunification services for the parents, and ordered them to attend drug rehabilitation and domestic violence counseling sessions. The court granted the parents monitored visits, with DCFS authorized to liberalize visitation terms.

In the meantime, in late April 2003, mother left her first residential treatment program, where she had problems with rule violations, and started a different one, where she made smoother progress toward the goals of her DCFS case plan. By December 2003, mother had undergone numerous random drug tests over several months with negative results. She progressed from weekly monitored visits with M. F. in early 2003 to full-day unmonitored visits starting on August 24, overnight visits starting on September 20, and three-day/two-night visits starting on October 22, 2003. Counselors at mother's residential treatment program reported that these visits were positive, with mother actively applying skills learned in parenting classes, and they recommended that mother be allowed to care for M. F. at the treatment program full time.

At a six-month review hearing on December 16, 2003, pursuant to section 366.21, subdivision (e), the court found both parents in compliance with the case plan and ordered DCFS to place M. F. in mother's custody, under DCFS supervision, and to provide mother with family maintenance services. Mother and M. F. resided at the residential treatment program from December 16, 2003 to January 25, 2004, when mother's treatment program ended. They then transferred to a sober living home. Mother had problems with the facility's rules and with her roommate, so she often slept at the home of the foster mother, while M. F. slept most nights there and also spent six days a week there in day care. Mother worked the graveyard shift at a job and claimed to be often too tired to visit M. F. during the day. A DCFS worker warned mother that she must take more responsibility for her daughter and must spend nights at the sober living home. From December 2003 to May 2004, mother had 18 more clean drug tests. In December, 2003, mother told DCFS staff that she intended to live apart from father. On February 13, 2004, mother called police to report that father had attempted to choke her in a domestic violence incident. In May, during an unannounced visit, a DCFS case worker found father at mother's home. Through the first half of 2004, mother attended some life skills classes but also missed appointments for family maintenance services.

On June 15, 2004, the juvenile court held a review hearing pursuant to section 364. Noting that certain problems remained, the court extended M. F.'s placement in mother's home and family maintenance services, and ordered mother to attend an additional domestic violence class. The court also ended reunification services but maintained visitation rights for father.

The next day, June 16, mother was arrested after attempting to defraud a Best Buy store. M. F. was with mother at the time. Mother pled guilty to commercial burglary and was sentenced to a year in jail on June 22, but was released on June 29 due to jail overcrowding. While mother was incarcerated, M. F. was left in the care of her maternal grandfather, who released her to her former foster mother on June 26. Mother arranged for father to transport M. F. to the foster home, even though he was not allowed unmonitored visits with his daughter. That same day, the foster mother took M. F. to the hospital for treatment of a serious ear infection. On June 28, mother called her DCFS case worker and said that she and M. F. were visiting mother's sister in Arkansas. Later that day, the foster mother called the case worker to report that mother had been arrested and that M. F. was back at the foster home with her siblings. DCFS re-detained M. F. and placed her with the foster mother.

At later hearings pursuant to section 342, mother and father submitted to, and the court sustained, the DCFS detention petition based on the February 2004 domestic violence incident, mother's arrest, and the parents' failure to provide M. F. proper medical care. The court granted mother two-hour monitored visits at least three times a week. At a contested section 342 disposition hearing on October 25, 2004, M. F.'s case worker testified regarding mother's recent problems, including missed drug tests and lying to DCFS about visiting Arkansas. Mother testified that she had missed some drug tests only because her work schedule and commute made those tests impossible, that she was continuing to take required classes and was living with her father.

On November 2, 2004, the court again declared M. F. to be a dependent of the court, ordered no further reunification services for mother and set a section 366.26 permanent placement hearing. On November 22, M. F.'s case worker initiated an adoption assessment for M. F., focusing on her foster mother. In a report for a status review hearing under section 364 on December 10, 2004, DCFS reported additional missed drug tests, but also that mother was staying employed, was regularly engaging in two-hour visits with her children, mostly on weekends, and was willing to take additional classes and continue drug testing to regain custody of M. F. DCFS also reported that the foster mother was committed to adopting M. F., and the agency recommended that permanent placement.

The section 366.26 hearing commenced on June 10, 2005. In its report, DCFS found M. F. to be thriving in the foster mother's care, along with her siblings. DCFS also reported that mother visited regularly on weekends, that these visits were positive and enjoyable for the children, and that mother and the foster mother had a good relationship. The agency also noted that mother had missed nine of thirteen drug tests since November 2004 and had not completed her second court-ordered domestic violence class. DCFS recommended termination of parents' parental rights and adoption of M. F. by her foster mother, who by then had adopted M. F.'s three siblings.

On July 7, 2005, the court heard testimony. The DCFS case worker acknowledged that mother's visits with her children were positive, but the case worker showed limited knowledge of the details of the visits--on which days, how long, whether mother fed, bathed, or otherwise cared for M. F. during visits, and such matters--beyond the brief description in the DCFS report. The next day, mother testified that during the first six months of 2005, she had regularly visited on both weekend days from around noon until 8:00 or 8:30 p.m. when the children went to bed. The foster mother allowed mother to have extensive time alone with M. F., and to change her clothes and diapers, feed her, clean her, hold her while she slept, play with her, and walk to the store and back with her. Mother brought the children clothing and food. M. F. called mother â€