Sandra W. v. Sup. Ct.

Filed 2/28/07 Sandra W. v. Sup. Ct. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

ORIGINAL PROCEEDING; petition for extraordinary writ. Denied.

________

Sandra W., in pro. per., for Petitioner Sandra W.

Thomas R. Hayes for Petitioner Samuel W.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Kim Nemoy, Deputy County Counsel, for Real Party in Interest.

Childrens Law Center and Kristen N. Walker for Minor Lamar W.

_________

Sandra W. and Samuel W., parents of dependent children Lamar W. (born in 1989), Christina W. (born in 1990), Claudette W. (born in 1992), and Wendy W. (born in 1995), petition for extraordinary writ review of orders setting a permanency planning hearing and terminating reunification services. (Welf. & Inst. Code, 366.22, 366.26;^[1]California Rules of Court, rule 8.452.) We deny the writ.

BACKGROUND

On September 22, 2005, during a meeting with her school psychologist, Christina, then 14 years old, complained of her parents serious, ongoing physical and psychological abuse of her and her siblings. Christinas two high school-age siblings, Lanease W.^[2]and Lamar, both confirmed what Christina had described. All three children said they were afraid to go on living in their parents home.

The school psychologist immediately referred the case to the Los Angeles County Department of Children and Family Services (DCFS). That same day, accompanied by two police officers and the three older children, a DCFS caseworker went to the family home. When they arrived, the children refused to leave the police car or to have any contact with their parents, who, along with the two younger children, were both at home. Samuel would not allow the caseworker in the house. When Sandra opened the door, the two youngest daughters, Claudette and Wendy, ran to their siblings in the police car. All five children refused to go back in the house. The caseworker, her supervisor, and the police officers concluded that there was no way to avoid detaining the children. The parents did not say goodbye to the children and would not allow the caseworker into the house to retrieve their clothing. Samuel told the caseworker, Take my children. They [l]ie. Do what you have to do. All you social worker[s] are alike. My children are lying but thats okay.

Later that same day, the caseworker interviewed all the children as well as other relatives and the school psychologist. All the children reported abusive conduct by their parents. They described how Samuel frequently hit them with closed fists or with a belt and engaged in other physical abuse such as dragging one child by the hair and shoving another up against a wall, in addition to psychologically abusing them by frequently calling them offensive names or calling them ugly, fat, or stupid. The children agreed that although Sandra was only occasionally abusive herself, she seldom did anything to protect them from Samuels abuse, often standing by and laughing. Lanease reported that her parents had been abusive for as long as she could remember, hitting the children with a belt or a high-heeled shoe for any infraction. She also reported, and a younger child confirmed, that the parents had locks on the refrigerator and kitchen cabinets, would not allow the children access to food, and sometimes let the children go hungry while feeding themselves. The children reported that their parents kept the windows locked and did not allow them to go out, and that they slept on shabby mattresses Samuel found on the street that had nails poking out. The children reported a recent, particularly savage beating of Lamar. Christina disclosed that she had attempted to stab herself or cut her wrist in the past. The children described their experiences tearfully and seemed relieved when they were told they would be placed in foster care. An adult sibling not living in the home reported that he had been abused the same way the children were and did not oppose the detention. Samuels brother, a police officer, also acknowledged problems in the family and did not disagree with the detention.

On September 27, 2005, DCFS filed a section 300 petition to detain the five children. At a hearing on that date, Sandra and Samuel appeared, represented by counsel, and denied the allegations in the petition. The court ordered the children detained and placed in temporary foster care and permitted the parents only monitored visitation. Both parents appeared at all further hearings with counsel.

Throughout these dependency proceedings, DCFS reported having trouble communicating with Samuel and Sandra. Before the initial detention hearing, a DCFS caseworker was unable to reach them by telephone and so also sent them telegrams to notify them of the upcoming hearing. Other caseworkers were unable to get the parents to return calls during December 2005 and January 2006.

Between January 17 and February 3, 2006, the dependency court held six days of contested hearings on jurisdiction and DCFS disposition plan. Samuel and various of his relatives testified, as did the children in camera. On February 3, the court dismissed the petition only as to Lanease, who had turned 18, but sustained the petition as to the other four children. The court ordered that family reunification services be offered to Sandra and Samuel but found that they would have to demonstrate the ability to meet the childrens physical and emotional needs and provide stable and appropriate housing before reunifying, and that thus far, their progress toward correcting the problems that had led to the detention had been minimal. The court continued monitored visitation and again approved the case plan which included counseling and parenting and anger management classes. On March 6, 2006, the court denied the parents application for a rehearing, and they appealed the jurisdictional and dispositional orders. The parents appointed counsel were unable to file opening briefs on the merits under In re Sade C. (1996) 13 Cal.4th 952, so this court reviewed their pro se briefs and the record, and on August 24, 2006, this court affirmed the trial court. (In re Lamar W. (Aug. 24, 2006, B190072) [nonpub. opn.].)

Meanwhile, Sandra and Samuel remained uncooperative with DCFS and difficult to contact. On January 31, 2006, a DCFS caseworker made an unannounced visit to the parents house, where Samuel refused to talk with him and refused the referrals the caseworker offered. On March 25, 2006, the same caseworker monitored the only face-to-face visit between the parents and the children, who had been placed all together with a foster mother in San Bernardino County. The parents arrived 35 minutes late and did not bring the childrens clothes as instructed. At that meeting, the caseworker gave the parents referrals, but father refused to sign for receipt of the referrals or to sign the monitored visitation rules. Later, other caseworkers tried unsuccessfully to contact the parents. DCFS arranged visitation for other relatives who were more cooperative.

At a status review hearing on May 1, 2006, the court found that the extent of [the parents] progress toward case plan compliance has been none. In a report for the May 2006 hearing, DCFS found the children happily placed with their foster mother, who expressed willingness to provide long-term care for all five children. But in the DCFS report for the 12-month permanency review hearing pursuant to section 366.21, subdivision (f), held on October 26, 2006, DCFS noted that after Lanease turned 18 and returned to her parents home, the other children became restless in their foster placement and began acting disrespectfully to the foster mother and breaking her rules, especially after talking with Sandra or Lanease on the phone. DCFS considered removing the children from the placement, but after six weeks of tension, the children settled down and acted more respectfully, and the caseworker again found them mostly happy to stay with the foster mother. Although the parents had only one face-to-face visit with the children, Sandra maintained frequent telephone contact with them. The parents, however, continued to refuse to answer the caseworkers phone calls or respond to phone messages. DCFS recommended ending reunification services and placing the children with the foster mother permanently.

The parents requested a contested section 366.21 hearing, which was held on November 22, 2006. The court admitted DCFS October report and the parents over 30-page submission in which they denied that the children were happy in their foster home, documented their telephone contact with the children since May 2006, and insisted that the whole section 300 petition and everything that had followed was in error and a violation of their due process rights. Counsel for the parents acknowledged that the parents had not participated in the court-ordered case plan, but argued that because they had maintained phone contact and would not pose a risk to the children, it was in the childrens best interests to return them to the parents. Although it noted the parents telephone visitation,^[3]the court found by clear and convincing evidence that Samuel and Sandra had made no progress toward case plan compliance, terminated reunification services, and set a permanency planning hearing under section 366.26. Samuel and Sandra timely appealed.

DISCUSSION

In a lengthy in propria persona petition, Sandra repeats the argument that the entire case is a due process violation, denies that the children are happy in their foster placement, denies that DCFS ever tried to contact the parents regularly and repeatedly by telephone, and lengthily documents her actual or attempted phone contact with the children. The petition contains no citations to relevant legal authority. An appellate court may treat as waived any issue raised in a partys brief that is not supported by proper citation of authority (McComber v. Wells (1999) 72 Cal.App.4th 512, 522), and we do so. In addition, to the extent Sandras petition seeks to relitigate the basic jurisdictional and dispositional issues decided by the trial court on February 3, 2006, and affirmed by us on August 24, 2006, these matters are res judicata. (See Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828.) Nor is there any due process violation, because Sandra and Samuel had notice, representation, and a chance to be heard at every hearing. (See In re Matthew P. (1999) 71 Cal.App.4th 841, 851.)

In his brief, Samuel contends that the dependency court erred reversibly by finding that DCFS had provided reasonable reunification services. But the reporters transcript from the November 22, 2006 hearing shows no objection by counsel for Samuel or Sandra to this finding. To preserve an issue for appeal, a party must raise the objection in the trial court. (In re S.C. (2006) 138 Cal.App.4th 396, 406; see also In re Kevin S. (1996) 41 Cal.App.4th 882, 885.) Because that was not done, we could treat the issue as waived. (See In re Kevin S., supra, 41 Cal.App.4th at p. 886.)

In any case, Samuels contention that the trial courts finding is not supported by clear and convincing evidence fails. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) An appellate court does not reweigh the evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 581.) [O]n appeal from a judgment required to be based upon clear and convincing evidence, the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the [petitioners] evidence, however strong. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.) DCFS provided substantial evidence to the trial court to show that it made reasonable efforts to offer reunification services to Samuel and Sandra, and the parents conflicting evidence is irrelevant for our review. As such, we must affirm. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

DISPOSITION

The petition for an extraordinary writ is denied.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

VOGEL, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Lanease turned 18 during these dependency proceedings and is not a subject of this appeal.

^[3] In the Reporters Transcript, the court acknowledges that there was parental visitation, but in the minute order from the hearing, the court found that the parents have not consistently and regularly visited the children. Samuel contends that the finding in the minute order was erroneous. Because there is substantial evidence to support the trial courts termination of reunification services based upon the parents refusal to participate in court-ordered programs, as we discuss later, this alleged error regarding visitation is irrelevant.