In re Sebastian A.



Filed 3/9/11 In re Sebastian A. CA2/7



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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re SEBASTIAN A. et al., Persons Coming Under the Juvenile Court Law.	B225972 (Los Angeles County Super. Ct. No. CK 59793)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. LUCY E. et al., Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County.
Debra Losnick, Juvenile Court Referee. Affirmed.
Cristina Gabrielidis Lechman, under appointment by the Court of Appeal, for Defendant and Appellant Luis A.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Lucy E.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White Svec, Deputy County Counsel, for Plaintiff and Respondent.
Lucy E. and Luis A., the mother and father of minors Sebastian, Alejandro and Victor, appeal from the order terminating their parental rights. Both parents contend the juvenile court abused its discretion when it denied their respective Welfare and Institutions Code section^[1] 388 petitions without a hearing and committed reversible error in terminating their parental rights when it found the section 366.26, subdivision (c)(1)(B)( i) exception did not apply. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background to First Appeal
A. Section 300 Petition for Sebastian and Alejandro

The family came to the attention of the Department of Children and Family Services (Department) in June 2005, when mother gave birth to Alejandro (at times, referred to as Ignacio), and both tested positive for methamphetamine. Sebastian was detained with his paternal aunt Carmen. Mother and father, who were not married, were no longer living together at the time of Alejandro's birth.
The court sustained the section 300 petition filed on behalf of Sebastian and Alejandro under subdivisions (a) and (b). The sustained counts stated the parents had a history of physical altercations, Alejandro and mother tested positive for methamphetamine at the time of Alejandro's birth, and mother and father both had a history of substance abuse.
At the disposition hearing, the court declared Sebastian and Alejandro dependent children and ordered them placed in home of parent (HOP), mother. The court ordered the Department to provide mother with family maintenance services and father with family reunification services and directed them to participate in parenting education, drug counseling with random drug testing and domestic violence counseling.
In February 2006, the parents relapsed and both tested positive for methamphetamine. The parents had a few heated arguments, and mother suffered a spike in her emotional problems. At one point, mother threatened to jump off a bridge and kill herself.
On May 2, the court sustained the Department's section 342 petition filed under section 300, subdivision (b). The sustained counts stated mother demonstrated mental and emotional problems which limited her ability to appropriately care for the children, she had a history of substance abuse and was a frequent user of alcohol and illicit dugs, and she allowed the children to be in the care of father in violation of court orders and despite his frequent use of illicit drugs. The court terminated the HOP order and ordered Sebastian and Alejandro removed from mother's custody and detained the children with the maternal grandparents. The court ordered the Department to provide family reunification services to mother and directed her to participate in parenting education, drug counseling, random drug testing, and domestic violence counseling. The court granted the parents monitored visits and gave the Department discretion to liberalize the visits.
In August, the parents were living together and having weekly monitored visits with the children; the visits were positive. Neither mother nor father had completed their services. In October, father was terminated from his drug program because of multiple absences; he had several positive tests for methamphetamine. The court found the parents were not in compliance with the case plan, terminated family reunification services and set a section 366.26 selection and implementation hearing (.26 hearing) for Sebastian and Alejandro.

B. Section 300 Petition for Victor

In April 2007, mother gave birth to Victor. Although neither mother nor Victor tested positive for drugs, mother admitted she had failed to get prenatal care during her pregnancy and had used methamphetamine throughout her pregnancy, sometimes with father. At the time of Victor's birth, the parents were residing next door to the maternal grandparents who were caring for Sebastian and Alejandro.
At the detention hearing, the court put Victor in a confidential placement. Able, the maternal uncle, told the social worker (CSW) that he and Ana, the maternal aunt, helped care for Sebastian and Alejandro and stated the parents had unlimited access to the children. Able alleged the parents were continuing to abuse drugs, father recently had been shot in the leg in front of the home during a drive-by shooting, father had an affiliation with a local gang, and Sebastian had been present when father was shot.
In November, the court sustained the section 300, subdivision (b) petition filed by the Department on behalf of Victor. The sustained counts stated mother had a 10-year history of illicit drug use, she was currently using illicit drugs, her older children were receiving permanent placement services due to her drug use, she had mental and emotional problems rendering her unable to care for Victor, mother and father had a history of domestic violence, and father had a history of and was a current user of illicit drugs. As to disposition, the court declared Victor a dependent child and ordered him removed from his parents' custody and detained him with the maternal grandparents. The court denied family reunification services and set a .26 hearing for Victor. The court ordered the parents to participate in parenting education, drug counseling, random drug testing, domestic violence counseling, and monitored visits.

C. Review Hearings and Petitions

At the .26 hearing for Sebastian and Alejandro in November 2007, the court selected guardianship as the permanent plan and appointed the maternal grandparents as the legal guardians.
In December 2007 and January 2008, family members alleged that the grandparents were allowing mother and father to have unmonitored visits with the three children while the parents were engaging in endangering conduct and that the grandparents were in ill health and unable to continue caring for the children. Able reported the parents had been disruptive in the neighborhood, father had been under the influence on several occasions when father came onto the maternal grandparents' property, and mother would enter the home whenever she pleased and harassed the grandparents. During one visit, the CSW encountered mother outdoors alone with Alejandro and father dancing in the middle of the street. The children were allowed to go across the street to spend time with the parents, and the grandfather would watch from inside the house. The children had seen mother arguing with her parents and had seen father drinking.
On March 4, 2008, the court sustained two section 387 petitions filed by the Department on the ground the court's previous disposition order had not been effective in the protection of the children. The court ordered the three children placed with a maternal aunt and uncle (Ana and Able) until further court order and granted the parents monitored visits in the Department office.
The Department reported there was increasing acrimony between the maternal and paternal sides of the family and all continued to feud from May to August. The Department filed a section 388 petition in April recommending the maternal grandparents' guardianship over Sebastian and Alejandro be terminated and the children continue to be placed with the maternal aunt and uncle.
At the May disposition hearing, the court ordered the three children remain dependent children and ordered the Department to provide family reunification services to the legal guardian maternal grandparents. The court further ordered weekly monitored visits for the parents and unmonitored visits for the guardians. The court also granted a hearing on the section 388 petition filed by Department requesting termination of the guardianship order.
On August 1, father filed a section 388 petition requesting further reunification services, return of the three children to his care and/or unmonitored visits. The Department recommended against unmonitored visits due to Sebastian's upset and angry periods regarding the parents' monitored visits and the lack of bonding or parental instincts between the parents and the children. Father withdrew his petition in December.
In September, the parents moved in with the maternal grandparents because the grandparents were frail and needed assistance. The maternal grandparents relied entirely on the parents to take care of them physically. The family members continued to feud. Sebastian's therapist recommended that visits continue to be monitored so he would not be placed in the awkward position of being in the middle of inappropriate comments by his feuding family members.
On September 24, mother filed a section 388 petition seeking further family reunification services, return of the three children to her care and/or unmonitored visits. The court summarily denied the petition, noting it would not be in the children's best interest to change the prior order.
Mother filed a timely notice of appeal from the summary denial of her section 388 petition. This court affirmed the summary denial.

II. Post-Appeal Developments

A. Review Hearings

At the October 2008 review hearing, the court terminated the guardianship, terminated reunification services for the guardians, ordered the children remain placed with the maternal aunt and uncle, and ordered the Department to provide permanent placement services for all three children.
For the further section .26 hearing for Victor, the Department reported there was a history of dramatic and escalating tension between the care givers (the maternal aunt and uncle) and the parents and grandparents, which resulted in a physical altercation between mother and maternal aunt. Following that incident, the care givers decided to no longer care for the children as the care givers did not want to live with constant hostility. The three children were placed in foster care for a short period and then returned to the maternal aunt and uncle. The parents and grandparents blamed the care givers for the detention of the children. The parents had engaged in a â€