Maria P. v.Super.
Filed 11/12/13 Maria P. v.Super. Ct. CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
MARIA P.,
Petitioner,
v.
THE SUPERIOR COURT OF THE STATE
OF CALIFORNIA FOR THE COUNTY
OF LOS ANGELES,
Respondent;
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
No. B250456
(LASC Case No. CK76798)
Marilyn Martinez, Commissioner
ORIGINAL
PROCEEDINGS; petition for extraordinary writ. Marilyn Martinez, Commissioner. Petition denied.
Luke
Jackson, for Petitioner.
Children’s
Law Center of Los Angeles, Patsy Moore for No.P.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, David
Nakhjavani, Deputy County Counsel for Real Party In Interest.
INTRODUCTION
M.P. (mother),
the mother of No.P. and his four siblings, petitions for extraordinary relief pursuant
to California Rules of Court, rule 8.452 (petition). Mother seeks review of an order setting a
permanent plan hearing under Welfare and Institutions Code section 366.26
its discretion by previously ordering No.P. separated from his siblings despite
the reports of the Department of Children
and Family Services (the Department) not stating the reason why the juvenile court
should do so; erred by requiring an offer of proof from her counsel prior to
setting the permanent plan hearing as to No.P.; and erred in that there was not
substantial evidence that mother’s visitation of No.P. was harmful to No.P. The Department filed an answer to the petition, and No.P.
joined in that answer. We deny the
petition.
FACTUAL AND PROCEDURAL BACKGROUND
Mother is
the mother of Na.P., a 15-year-old girl, J.P., a 12-year-old girl, C.P., an
11-year-old girl, P.U., an 8-year-old boy, and No.P., a 6-year-old boy. No.P. is the only child who is the subject of the petition.
of Child Welfare Issues
The
Department filed a detention report, dated April 6, 2009, stating that in 2001 mother and her
children at that time came to the attention of the Department based on
allegations of physical abuse of the children, and from August 2001
through February 2002, the family participated in a
(VFM). In 2008, the Department received
another referral alleging that No.P.’s siblings—Na.P., J.P., C.P., and
P.U.—were being physically abused, and “a number of referrals†alleging general
neglect and physical abuse of the children.
The Department reported that when the children’s social worker (CSW)
visited the children in October 2008, P.U., C.P., J.P., and Na.P. all had marks
and bruises, including lacerations, scratches, and scabs. All the children except Na.P. stated that
mother would repeatedly hit them, and C.P. stated that mother hit all of the
children, except “the baby,†No.P. The
Department conducted team decision making meetings (TDM), mother agreed to
participate in another VFM and additional parenting classes, and the Department
decided that the children were to continue to reside with mother.
Allegations
The April 6, 2009, detention report stated
that on March 27, 2009, a
CSW went to the children’s school to complete a monthly contact with Na.P. and
C.P. During the visit, Na.P. stated that
mother continued to physically abuse P.U., C.P., J.P. and Na.P.; Na.P started
to cry and stated she was afraid to go home.
C.P. told the CSW that mother would pull her hair and it hurt “a lot,â€
and mother continued to hit her and all of her siblings except No.P. J.P. stated that mother sometimes used her
hand, and other times used a clothes hanger, to hit them. J.P. did not want to go home. P.U. stated that mother would hit him “a lot,
a lot, a lot, a lot,†and he pointed to his neck to show the CSW where mother
had hit him with a hanger. No.P., who
was two years old at the time, was too young to provide a meaningful
statement.
The
detention report stated that on April 1, 2009, the Department conducted a TDM
during which the Department learned that mother would leave the children
without proper supervision or sufficient amounts of food, had attended one
parenting session, and stopped attending individual counseling. When asked about the allegations made against
her during the TDM, mother stated, “If you want to believe what is being said
then go ahead.â€
According
to the detention report, mother stated that she did not want her children
residing with any family members and would rather have the children placed in
foster homes. The Supervising CSW advised
mother that it would be very difficult for the Department to find a placement
for the children in their area, and stated that placing the children in foster
homes could further traumatize the children, especially when there were family
members willing to care for the children.
Mother stated, “I prefer the children [are placed] in a foster home so
that they can see if they want to live in a foster home or with me.†Mother also indicated she would not cooperate
with services or sign a safety plan. The
Department took the children into protective custody.
On Apri1 6,
2009, the Department filed a section 300 petition on behalf of the children
based on, inter alia, the mother’s physical abuse of C.P., P.U., Na.P., and
J.P., including incidents where mother had physically hit them with her hands,
shoes, cables, sticks, and hangers. At
the April 6, 2009, detention hearing, the juvenile court found a prima facie
case for detaining the children and that they were minors described by section
300, subdivisions (a), (b), (g), and (j).
P.U. was released to his father’s custody. No.P. and his other siblings—C.P., Na.P., and
J.P.—were ordered detained in shelter care. At the April 28, 2009, non-appearance progress
hearing, the juvenile court ordered C.P., Na.P., and J.P. detained with their
maternal aunt, and that No.P. continue to be detained in shelter care.
The
Department’s April 30, 2009, jurisdiction/disposition report stated that No.P.
had been placed with L.O., a non-related extended family member. Na.P. stated, “I feel terrified about my
mom. I want her to stop hitting us.†J.P. stated, “[mother] hits us with a hanger,
right here (arm) like 8 times. . . . She pulled
Na.P.’s hair. She hit [C.P.] too.
. . . She hit us with her hand and with her
shoe. It’s a boot that my mom
wears. I want her to stop hitting
us. I want to stay with my aunt.†C.P. stated, “My mom treats us bad.†Mother minimized the allegations of physical
abuse, stating that, “I think [Na.P.] got this idea from school.â€
The April
30, 2009, jurisdiction/disposition report stated that mother said she had
visited J.P., Na.P., and C.P. on one occasion since the children were detained. According to mother, she was visiting No.P.
almost daily but she stopped visiting with him because she had a confrontation
with L.O., No.P.’s caregiver. She
also had not visited P.U. due to alleged difficulties in arranging visits with
the father.
At a
hearing held on May 27, 2009, the juvenile court sustained the petition and
declared the children dependents of the court.
P.U. was released to his father’s custody with a family law order
granting the father sole legal and physical custody, and jurisdiction over him was
terminated. The juvenile court granted
mother family reunification services, ordered mother to complete a 20-week
parenting course and participate in individual counseling with a licensed
therapist to address case issues, including mother’s anger management issues,
and granted mother monitored visits with the children.
In its
November 25, 2009, status review report, the Department stated that the
assigned CSW had trouble contacting mother during the latest period of
supervision. According to the report, on
August 11, 2009, mother would not provide the CSW with mother’s address and mother
on a friend’s telephone. The CSW only
was able to meet with mother on one occasion.
Mother reported she was nine months pregnant, scheduled to deliver the
child on November 25, 2009, and was living with her boyfriend, the father of
her unborn child.
The
November 25, 2009, status review report stated that No.P. continued to reside
with L.O. and L.O.’s boyfriend, was meeting his developmental milestones,
appeared attached to his caregivers, and called L.O. “mommy†and L.O.’s
boyfriend, “Papi.†L.O. stated that she
would be interested in adopting No.P. should mother fail to reunify with
him.
According
to the status review report, on April 15, 2009, the Department set up a schedule
with mother to visit No.P. and the other children. When the CSW contacted the children’s
caregivers, however, they stated that mother had not contacted them to arrange
any visits.
The status
review report stated that on November 13, 2009, mother had a monitored visit with
the children. During the visit, mother
tried “to get close†to No.P., but he would not acknowledge mother. Mother cried when she spoke to No.P.
The
November 25, 2009, status review report stated that mother said that she had not
started her court ordered services due to her pregnancy. According to the report, mother had “made no
progress in Court ordered services. . . . . [Mother]
ha[d] failed to enroll in parenting, individual counseling and ha[d] not made
any attempt to visit any of her children.
At this time, it would be detrimental to the children’s well being to
have them return to mother’s care.†The
Department recommended that the juvenile court terminate mother’s family
reunification services, and at the November 25, 2009, six-month review hearing,
the juvenile court terminated those services.
On March
24, 2010, the Department filed a section 366.26 report stating that L.O. and
her boyfriend were interested in adopting No.P. No.P. was attached to his caregivers and
called them “mama†and “papi.†L.O.,
No.P.’s caregiver, was a family friend who had been in frequent contact with
the children prior to their detention.
On January
27, 2011, the Department reported that No.P. had resided with L.O. and her
boyfriend since Apri1 2009. No.P.
identified L.O. as his mother and had developed a strong emotional attachment
toward her and her family. The adoption,
however, could not take place because L.O. was legally married to her
ex-husband from whom she had separated, and the whereabouts of her husband were
unknown. The Department recommended that
No.P. remain with L.O. and her boyfriend under a plan of guardianship. The Department stated, “If the caregiver
obtains a divorce or she is able to locate her husband and have the spousal
waiver signed, the adoption process can be re-activated.â€
At a
hearing held on January 27, 2011, mother was not present and her counsel stated
that she had no direction from mother regarding the status of the case. The juvenile court found by
Na.P., J.P., and C.P. were adoptable and terminated mother’s parental rights
over them. No.P.’s counsel stated that mother
had not been visiting No.P. The juvenile
court ordered mother to have one monitored visit per year, if mother so
desired. Mother’s counsel did not object
to this visitation order.
At the
hearing, L.O. and her boyfriend stated that they wanted to become No.P.’s legal
guardians. The juvenile court stated that
they wished to adopt him but because L.O.’s husband could not be contacted to
finalize the divorce, L.O.’s home study could not be approved and the juvenile court
could not proceed with adoption. The juvenile
court appointed L.O. and L.O.’s boyfriend as No.P.’s legal guardians and stated
that it would revisit the issue of adoption at a later time.
The
Department filed a status review report, dated June 30, 2011, stating that
No.P. was then four years old, appeared to be a healthy and active child, and was
developmentally on track. The Department
filed a status review report, dated December 8, 2011, stating that on October
28, 2011, mother had contacted the CSW attempting to schedule a visit with
No.P. The CSW scheduled a visit for
mother in November, but mother stated she would not be able to see No.P. that
week and indicated she would call back to reschedule. Mother did not contact the CSW to reschedule
the visit. The Department filed a status
review report, dated June 7, 2012, stating that mother had not contacted the
CSW to arrange to visit with No.P.
At the June
7, 2012, review of permanent plan hearing, the following exchange occurred:
“[Juvenile court:] According to the
report, your child is well cared for by his guardians, and you have not visited
him. Do you have any questions or comments? [¶] [Mother:] I
want to know if I still have the option of recovering my son? [¶] [Juvenile
court:] You always do because I have not
terminated your parental rights. You are
still the child’s mother. When you
believe that you have complied with the prior orders of this court, that you
are living a sober and stable lifestyle, you may file a [section] 388 petition,
and you’ll want to advise me of the new evidence and persuade me that it would
be in [No.P.’s] best interest to return to you.
So the answer is yes. [¶] . . . [¶]
It would also be very important that you . . . stay in regular
communication with the social worker and keep the social worker advised of your
status. [¶] . . . [¶] When I granted
the guardianship, you hadn’t had any contact with your child; so I ordered once
a year. The guardians can authorize more
frequently, but you will have to contact the social worker to set up at least your
first visit because you haven’t had any this year. And, once you set up your first visit, if it
goes well, then you may have it more frequently.â€
On June 18,
2012, mother visited No.P. at the Department’s office. During the visit, No.P. sat on the sofa, face
down, with a serious demeanor. He did
not talk to mother. When mother asked No.P.
questions, he responded by nodding his head. At the end of the visit, mother asked for a
kiss but No.P. was not responsive. After
the visit, No.P. stated that he did not recognize mother.
On August
9, 2012, mother filed a section 388 petition stating that she had enrolled in a
parenting class and was renting a two-bedroom apartment with her fiancé. She asked that the juvenile court grant her
overnight weekend visits with No.P so that she could start bonding with him and
obtain custody of him in the future. On September
7, 2012, the juvenile court summarily denied mother’s petition, finding that
the best interests of No.P. would not be promoted by the requested
modification. The juvenile court denied
the petition because “mother just one month ago enrolled in parenting
[classes], so she is only at [the] beginning of that course. No other verification for other court ordered
prog. and according to the Court Report 6-7-12, mother has not been visiting
[No.P.].â€
On October
1, 2012, mother filed another section 388 petition. She reiterated her enrollment in parenting
classes and “reminded†the juvenile court that she only had been granted one
visit per year with No.P. She again
requested that the court grant her overnight, weekend visits. On October 5, 2012, the juvenile court
summarily denied mother’s petition, finding that “the best interest of [No.P.]
would not be promoted by the proposed change of order.†The juvenile court denied the petition because
“[mother] is still at beginning of parenting & counseling courses. Mother’s visits are limited—she cancelled a
visit for Nov. 2011 & didn’t call social worker . . . to
reschedule until about June 2012.
[No.P.] is stable with guardians, so request is not in child’s best
interest.â€
On December
3, 2012, mother filed another section 388 petition. She stated that she had completed parenting
classes and individual counseling and wanted to have weekend visits with No.P. On December 6, 2012, the juvenile court denied
mother’s petition, finding that “the best interests of [No.P.] would not be
promoted by the proposed change of order.â€
stated that it “allowed discussion on 12-6-12.
Mother has visited only 1/yr.
[No.P. is] very bonded to guardian.
Per [No.P.’s] therapist mother’s requests could be disturbing to
[No.P.].†The juvenile court, however, granted
mother visits with No.P. every other month, to be arranged through the CSW.
In its
December 6, 2012, status review report, mother stated that both she and her
husband had been incarcerated for an “altercation†but were released and “able
to work through it.†Mother did not
provide any additional details regarding the incident.
The status
review report stated that No.P. is receiving mental health services, and his therapist
stated, “[No.P.] has established strong emotional bonds and attachment with
[L.O. and her boyfriend] whom he refers to as his mother and father. [No.P.] feels loved and safe with [L.O. and
her boyfriend] and depends on them for all his needs. . .
. Since his placement with [L.O.] 3 1/2 years ago, [No.P.’s] contact with
[mother] has been very sporadic and minimal.
Given the intensity of [No.P.’s] attachment to his current family and
the years he has learned to depend on his current family for his needs to
establish trust and self worth, and separation between [No.P.] and his current
legal guardian will be experienced as traumatic.†(Italics omitted.)
According
to the June 6, 2013 status review report, in February 2013, mother had another visit
with No.P. Mother arrived at the visit
with her husband and their baby. Mother
brought No.P. a cake and felt bad when No.P. did not want to eat a piece. The visit only lasted 30 minutes, during which
mother’s 2-year old child, who was being supervised by mother’s husband, kept
running into the visitation room, asking for cake, and punching and biting
mother’s arm. Mother was upset at the
conclusion of the visit, told the CSW that she drove from Victorville to see
No.P., and it seemed as though the child “was not trying.â€
The
Department’s status review report, dated June 6, 2013, stated that in April
2013, mother visited with No.P. A Human
Services Aid attended the visit because the CSW was not available to attend it.
At the beginning of the visit, No.P.
stood behind L.O. and stated that he did not want to go into the room to visit
mother. No.P. stated that he “would not
mind†if the visit took place in the waiting room, but mother postponed the
visit because she wanted the visit to be “in private and not in front of
people.†Mother believed No.P. did not
want to visit because the CSW was not there. A few days thereafter, No.P. informed the CSW
that he did not want to visit with mother. The CSW tried to talk to No.P. and ask him why
he did not want to visit, but No.P. was not able to give a response and just
stated he did not want to see mother.
According
to the status review report, L.O. stated that her marital divorce was now final,
and she wished to adopt No.P. Mother stated
that should the juvenile court decide not to give her custody of No.P., she
would feel sad but she would be alright “all this is affecting No.P.
emotionally.†Mother stated that she was
“looking out†for No.P.’s best interest. The Department recommended No.P. remain with
L.O., the juvenile court terminate mother’s parental rights, and the juvenile
court free No.P. to be adopted by L.O. and her boyfriend.
The
juvenile court held a hearing on June 6, 2013.
No.P.’s counsel stated that adoption was the appropriate plan for No.P.,
and asked that the juvenile court set a section 366.26 hearing and order that
No.P. not have any further visits with mother. Mother’s counsel stated that “terminating
[mother’s] parental rights is extreme, and we would like to preserve the status
quo, if possible, where she is allowed visitation and trying to fix the bond
with [No.P.]. [¶] [No.P.’s] very young, and I don’t think he’s
quite capable of making decisions to terminate his relationship with [mother],
and so we oppose the adoption and would like to have more visitation so my
client can see [No.P.] more frequently.â€
At the June
6, 2013, hearing the following exchange occurred: [Juvenile Court:] “I will set the matter for a
366.26 hearing. [¶] . . . [¶] And in order for me to consider setting the selection
and implementation hearing pursuant to [section] 366.26 for contested hearing,
I will need an offer of proof, [mother’s counsel]. [¶] Do
you have anything to add as an offer of proof other than what it is you
stated?†[¶] [Mother’s counsel:] “Not presently, your honor.†[¶]
[Juvenile Court:] Assuming that
is a request to contest the recommendation to terminate parental rights, I find
that there is not an offer of proof sufficient to persuade me that if I set the
matter for contest, there’s any reasonable likelihood that I would find that it
would be detrimental to terminate parental rights or some other reason that
would preclude adoption.â€
At the
hearing, the juvenile court stated regarding visitation that, “I’ve not yet
terminated [mother’s] parental rights; however, we are well beyond
reunification. Once we are beyond
reunification, the focus shifts from the relationship between a child and
parent, or mother as we have here, to providing the child with permanency and
stability. [¶] The last visits,
there was one in December and one in February.
So the visits are minimal at best.
The most recent in February—actually I think there was one also
scheduled on April 12th. At the February
hearing, mother was about—the visit only lasted 30 minutes because [mother]
became very upset, and the visit had to be terminated. [No.P.] was exposed to this. [¶] And I now find that it is detrimental
by the preponderance of the evidence for [No.P.] to have contact with his
mother. Her efforts to contact him and
visit with him have been minimal at best.
As I said, one in December. The
next one in February turned out badly as her conduct was very upsetting, and
the monitored had to terminate the visit such that the next one, April 12th,
[No.P.] absolutely refused to visit. [¶] [No.P.] does have some special needs. He’s in special education. He’s in therapy. His caretakers are ensuring that his needs
are met. [¶] We must focus on providing him with
permanency and stability and not subjecting him to situations that cause him
stress and turmoil. So he shall not have
contact with mother pending further order of the court.â€
We denied
the petition’s request that we immediately stay the section 366.26 hearing, and
set a hearing on an order to show cause why the relief prayed for in the
petition should not be granted.
DISCUSSION
A. Separation
from Siblings
Mother
contends that the juvenile court abused its discretion by ordering that No.P.
be “separated . . . from his older brothers and sisters,â€
arguing that “the reports†need to state the reason why the children were not
placed together, “and a review of the record fails to disclose a reason for [No.P.’s] separation from his brothers
and sisters.†A memorandum in support of
the petition “must provide a summary of the significant facts, limited to
matters in the record.†(Cal. Rules of
Court, rule 8.452(b)(1).) It must also “support
any reference to a matter in the record by a citation to the record. The memorandum should explain the significance
of any cited portion of the record . . . .†(Cal. Rules of Court, rule 8.452(b)(3).) Here, mother failed to identify the juvenile
court order that she challenges; identify the “reports†she contends should
have stated, but failed to state, the reason why the children were not placed
together; summarize the significant facts of that claim; cite to the record; explain
the significance of any cited portion of the record; or otherwise develop her
argument. We therefore do not consider
mother’s contention concerning alleged deficiencies in the reports relied upon
by the juvenile court. (
Cal.App.4th 728, 743.)
B. Offer
of Proof
Mother also
contends that the juvenile court erred when it required an offer of proof from
her counsel prior to setting a contested section 366.26 hearing. We disagree.
Mother did
not object to having to provide an offer of proof during the hearing. “When a party does not raise an argument
[before the trial court], he may not do so on appeal. [Citations.]â€
(People v. Clark (1993) 5
Cal.4th 950, 988, fn. 13, disapproved on other grounds as stated in
421, fn. 22.) ‘“A party is not permitted
to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be
unfair to the trial court, but manifestly unjust to the opposing litigant.’ [Citation.]â€
(Expansion Pointe Properties Limited
Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152
Cal.App.4th 42, 54-55; In re Michael L.
(1985) 39 Cal.3d 81, 88; In re
Christopher B. (1996) 43 Cal.App.4th 551, 558.)
Even if
mother did not forfeit her contention, her contention fails on the merits. Mother argues, “the juvenile court cannot
require a party to a review hearing
to tender an offer of proof as a condition to obtaining a contested hearing†(
266, italics added.) The juvenile court
however may require an offer of proof prior to setting a contested section
366.26 hearing. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1116.) “Because due process is . . . a
flexible concept dependent on the circumstances, the court can require an offer
of proof to insure that before limited judicial and attorney resources are
committed to a hearing on the issue, mother had evidence of significant
probative value. If due process does not
permit a parent to introduce irrelevant evidence, due process does not require
a court to hold a contested hearing if it is not convinced the parent will
present relevant evidence on the issue he or she seeks to contest. The trial court can therefore exercise its
power to request an offer of proof to clearly identify the contested issue(s)
so it can determine whether a parent’s representation is sufficient to warrant
a hearing involving presentation of evidence and confrontation and
cross-examination of witnesses.†(
mother’s counsel to make an offer of proof prior to setting a contested section
366.26 hearing.
C. Visitation
Order and Orders Denying Section 388 Petitions
Mother contends that the
juvenile court erred by ordering on January 27, 2011, that mother have
approximately one visit a year with No.P., and denying mother’s section 388
petitions on September 11, 2012, November 5, 2012, and January 3, 2013,
requesting additional visits with No.P.
A visitation order is an appealable order (§ 395; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250) as is an order
denying a section 388 petition (§ 395; In
re Madison W. (2006) 141 Cal.App.4th 1447, 1450). Mother never appealed the visitation order or
the orders denying her section 388 petitions.
We therefore do not entertain mothers contentions regarding those orders
in this writ proceeding.
D. Order
of No Contact and Setting Permanent Plan Hearing
Mother
contends that the juvenile court abused its discretion in issuing its June 6,
2013, order that mother shall not have contact with No.P. pending further order
from the juvenile court, and setting a permanent plan hearing under section
366.26 as to No.P.
According to mother, “[T]here was no evidence that
visitation presented harm to [No.P.].†We
disagree.
A juvenile
court’s ruling is an abuse of discretion when it is arbitrary, capricious, or
patently absurd. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) The appropriate test for abuse of discretion
is whether the trial court exceeded the bounds of reason, and when two or more
inferences can reasonably be deduced from the facts, we have no authority to
substitute our decision for that of the juvenile court. (In re
Stephanie M. (1994) 7 Cal.4th 295, 318-319.) After the termination of reunification
services, the parents’ interest in the care, custody and companionship of the
child are no longer paramount. Instead,
“the focus shifts to the needs of the child for permanency and stability.†(In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
In challenging
the June 6, 2013, order, mother essentially contends that the juvenile court
erred by ordering on January 27, 2011, that mother have one visit a year with
No.P.,
mother’s section 388 petitions, discussed above. Mother’s August 9, 2012, section 388 petition
requested that she have overnight weekend visits with No.P. In support of that petition, mother notes
that she had enrolled in a parenting class and was renting a two-bedroom
apartment with her fiancé. Mother’s
October 1, 2012, section 388 petition again requested that she have overnight
weekend visits with No.P. because, as mother reiterated, she enrolled in
parenting classes, and she only had been granted one visit per year with
No.P. Mother’s December 3, 2012, section
388 petition requested that she have weekend visits with No.P. because mother
completed her parenting classes and individual counseling. The juvenile court denied the petitions,
finding on each occasion that the requested modification to the visitation
order was not in No.P.’s best interest.
As
discussed above, a visitation order and an order denying a section 388 petition
are appealable orders. (§ 395;
Cal.App.4th at p. 1250.) Because mother
never appealed those orders, she is bound by the findings in those proceedings. (People
v. Carter (2005) 36 Cal.4th 1215, 1240 [collateral estoppel];
393 157 [“the issues determined by†an appealable order from which a timely
appeal was not taken “are res judicataâ€], superseded on other grounds as stated
in People v. Mena (2012) 54 Cal.4th
146; Bernhard v. Bank of America (1942)
19 Cal.2d 807, 813 [res judicata]; Nein
v. HostPro, Inc. (2009) 174 Cal.App.4th 833, 845 [collateral estoppel];
Cal.App.4th 509, 532 [“‘A judgment or order . . . become[s] res judicata
[when] it is final in the. . . sense of being free from direct attack’â€];
Cal.App.4th 1391, 1396 [the issues determined by an appealable order “are res
judicata†if not timely appealed].)
In
addition, mother had more than four years to reunify with No.P. but failed to
do so. No.P. came to the attention of
the Department and the juvenile court when he was two years old. The juvenile court sustained the petition alleging,
inter alia, that mother physically abused C.P., P.U., Na.P., and J.P., declared
mother’s children dependents of the court, and granted mother family
reunification services.
As of the
sixth month review hearing, mother visited No.P. on one occasion, had not
contacted No.P.’s caregiver to schedule any additional visits, and failed to
participate in her court-ordered services.
Accordingly, in November 2009, the juvenile court terminated mother’s family
reunification services.
During the
fourteen months following the termination of mother’s family reunification
services, mother had not visited with No.P., made no efforts to reunify with
No.P., and did not appear at the January 27, 2011, hearing. Mother’s counsel informed the juvenile court
she had no instructions from mother regarding the case. No.P.’s counsel informed the juvenile court
that mother had not been visiting No.P., and the juvenile court ordered “once a
year†visits for mother if mother so desired. Mother’s counsel did not object to this
visitation order.
By November
2011, two years after mother’s family reunification services were terminated,
mother had not visited with No.P. following her initial visit with him. About seven months later, mother appeared at
the June 2012, hearing and inquired about regaining custody of No.P. The juvenile court stated that it had not
terminated her parental rights, advised mother to start visiting No.P.,
explained to her that there could be more frequent visits if the initial visit
went well, and told mother to stay in contact with the CSW.
In June
2012, mother had one visit with No.P., and No.P. was not responsive to mother
during that visit. Mother had another
visit with No.P. in February 2013; it lasted only about 30 minutes, and mother
complained that No.P. was “not trying.†The
April 2013 visit was cancelled by mother when No.P. stated he did not want to
attend. In May 2013, No.P. told the CSW
he no longer wanted to visit mother.
After the
termination of reunification services, “the focus shifts to the needs of the
child for permanency and stability.†(
The juvenile court properly focused on providing No.P. with permanency
and stability and not subjecting him to situations that cause him stress and
turmoil. Mother’s visits with No.P. were
infrequent, one of the visits lasted only about 30 minutes and mother became
visibility upset during it, and No.P. has refused to visit with mother. No.P. was bonded with L.O. and L.O’s
boyfriend. No.P. was thriving in their
care, and they expressed a desire to adopt No.P. The juvenile court did not abuse its
discretion in ordering that mother shall not have contact with No.P. pending
further order from the juvenile court, and setting a permanent plan hearing
under section 366.26 as to No.P.
DISPOSITION
The
petition for extraordinary relief is denied. This opinion shall become final immediately
upon filing. (Cal. Rules of Court, rule 8.264(b)(2)(A).)
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
MOSK,
J.
We concur:
TURNER, P. J.
KRIEGLER, J.
name="_ftn1" title="">[1]
All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
name="_ftn2" title="">[2] Mother
never appealed the juvenile court’s summary denials of her section 388
petitions.
