In re Emily B.

Filed 7/19/07 In re Emily B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from an order of the Superior Court of Los Angeles County,

Marilyn Mackel, Commissioner. Affirmed.

Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Plaintiff and Respondent.

____________________________

INTRODUCTION

Appellant, Robin F. (Robin), is the de facto parent and maternal great aunt of Noah B. (Noah), born in November 2000, and Emily B. (Emily), born in August 2003. Robin appeals from the courts termination of jurisdiction over Noah pursuant to Welfare and Institutions Code section 364[1] for failure to give notice to her and for an alleged improper delegation of judicial authority to determine visitation rights between Robin and Emily. For the reasons hereafter stated, we affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

Kern County Dependency Proceedings.

Noah was born in November 2000. He came to the attention of the juvenile court in Kern County on May 30, 2002. The Kern County Department of Human Resourses (DHS) filed a Welfare and Institutions Code section 300 petition and took Noah into protective custody after his five-month-old sister Alexia B. (Alexia) died under questionable circumstances. Allegations were also made against Cari B., (Mother)[2] of Noah, to the effect that Mother was abusing Noah.

The social worker in Kern County responded and noted bruises on the face, nose and eye of Noah. When confronted, the father of Noah, Charles B. (Father)[3], explained the bruises on the nose and face were from the funeral home, the bruise on the eye was a result of Noahs fall on his Tonka truck, and the other from walking into a kitchen cupboard at the paternal grandfathers home.

Alexia also had a bruise on her head, which Father explained was the result of Noah throwing his Tonka truck at her. Father reported that the doctor looked at the bruise and gave his opinion it was not the cause of Alexias demise. Father related that he and Mother were dealing with Alexias death and were not giving Noah much attention. The social worker recommended that the family participate in grief counseling and parenting classes and had previously provided a resource directory for that purpose during a referral contact.

Father reported that he and Mother were working on their toilet tank together on the night of Alexias death and then he went to a neighbors home. Mother came 20 minutes later and told him that Alexia was not breathing. They called 9-1-1 and the neighbor performed CPR on Alexia before the paramedics arrived. Alexia was then taken to Bakersfield Heart Hospital.

The social worker questioned Mother separately. Mothers explanation was consistent with Fathers account as to the reasons for Noahs bruises. Mother was also questioned separately by a sheriffs deputy about Mothers prior account of one of Noahs bruises. Mother explained Noah had hurt his eye on two separate occasions, once on the computer desk and at another time on the kitchen cabinet. Mother told the social worker that she was pregnant but had no intention of keeping the child and was planning an abortion. Mother recounted that on the day of Alexias death she fed the baby around six. The baby was crying and fussy. Mother and Father went to the store for about 20 minutes and upon return gave Alexia some Ora-gel for teething purposes, wrapped the baby in a blanket like a burrito because the air conditioning was on and it was cold and placed her on her stomach for a nap on the bed. Mother placed the baby on her stomach because she had not burped well. Because the baby had rolled off the bed previously Mother placed pillows around her to prevent rolling off again. Mother and Father went out to fix the toilet, after which Father went to visit a neighbor. On returning to the house Mother read a newspaper and checked on Alexia about 20 minutes later and discovered she was not breathing. Mother then went next door to get Father and called 9-1-1. Father gave Alexia CPR. Mother asked the neighbor to take Noah next door. Noah had been in his playpen for about an hour and Mother asked the neighbor to take Noah to his trailer because she did not want Noah to see everything. While relating the details of Alexias death Mother gave a flat appearance and did not tear up.

The social worker questioned Mother about an incident in front of family members when she put her hand over Noahs face. Mother related that she had done this when Noah threw a tantrum while everyone was grieving, but Noah was able to breath and he bit her. Mother, however, denied that she had ever placed her hand over Alexias mouth.

Mother admitted to using marijuana on approximately three occasions from 1999 to 2000 upon the death of her grandmother. Mother admitted that she and Father had used marijuana together on two occasions in 2000.

The social worker had safety concerns about the home and discussed the two foot pool with Mother. When the social worker mentioned the possibility that Noah might be taken from her Mother became tearful and stated that she could not live if Noah were taken from her care.

Relatives of the parents were interviewed by the social worker. A paternal step aunt who lived in Florida referred to bruises and finger marks she observed on Noah and related the variety of excuses the parents gave to explain them. The paternal grandfather reported that on two occasions he had seen hand prints on the back of Noahs legs and that he was concerned when he saw Mother give Noah Benadryl to relax him. The paternal grandfather said he had not had that much contact with Alexia but had not seen any marks or bruises on the baby.

Father and Mother had lived with the paternal grandfather and step-grandmother in Florida when they moved there in 2001 from California. Prior to moving into their own apartment, they stayed with the paternal grandfather and step-grandmother for a couple of months. The paternal grandfather noted that Mother looked high a couple of times and when he confronted Mother she admitted to using marijuana a few times.

Also living in Florida was the maternal grandmother who ventured the opinion that the reason Father and Mother left Florida for California was because they were being investigated by the Child Protective Services. Maternal grandmother had also noticed bruises on Noahs arms, legs and head. Mother stated Noah had slipped in the shower or bath and she had dropped the child by accident. On two occasions the maternal grandmother had witnessed Mother hold Noahs head down in his playpen until the child stopped crying. Maternal grandmother traveled to Bakersfield for the funeral of Alexia. While shopping at a mall on May 25, 2002, she saw Mother put her hand over Noahs face when he started screaming. Maternal grandmother requested Mother not to do that and then bought her a parenting book.

Mother had a great-great aunt living in Florida and upon being interviewed by the social worker she indicated within a few months of the arrival of Father, Mother and Noah she noticed bruises on Noahs head and face. Mother reported that Noah tried to fight her and fell. When Mother placed Noah in his bed for sleep she would wrap him tightly in a blanket and if Noah cried she would hold Noahs head down on a blanket and say Shut up or Im not putting up with this. The aunt told Mother she could suffocate Noah that way. The aunt also reported that she saw Mother give Noah large doses of Tylenol and Pediacare and observed on one occasion that Noahs eyes looked glassy.

The social worker provided Mother and Father with a referral and each voluntarily agreed to drug testing. Father admitted to using marijuana and cocaine when he was 16 years old and further admitted to using marijuana with Mother. On May 29, 2002, Father and Mother had enrolled in a parenting class at Haven Counseling Center. Father said he disciplined Noah by giving him a smack on the hand or spanking him on his bottom or giving him a time out or putting Noah in a playpen. Father said that when Noah threw a temper tantrum, he would ignore Noah and this seemed to work well. Father indicated that he had read this suggestion in a parenting book.

On May 31, 2002, Father, Mother, grandmother, step-grandmother, grandfather and great-grandmother were present in court. The court declared the father to be the presumed father. The court made prima facie findings to detain the child from Mother and Father and ordered DHS to provide reunification services. The court authorized DHS to investigate any interested relatives and to release Noah to an appropriate relative. The court further ordered that Father and Mother could have hourly, twice weekly visits to be supervised by DHS and gave DHS the discretion to increase and liberalize the visits. Noah was in Los Angeles at that time where the visits were to take place.

On July 11, 2002, a supplemental social study was submitted by DHS containing a finding by the Coroner who concluded on June 11, 2002, that there was [n]o evidence of trauma or violence that would obviously directly account for [the babys] death. The conclusion of the report was that Alexia died from Sudden Infant Death Syndrome.

The discharge report on Alexia was also obtained by DHS when Alexia was admitted for gastroenteritis with dehydration. The report noted that Alexia had come in with two bruises that appeared to be the same age and color and located under her eye and on her forehead. A series of x-rays were taken of the baby and no further bruises were found. Child protective services was notified, Mother and Father were interviewed and it was felt the patient was stable to go home with the parents. The report also mentioned that Father and Mother had been questioned by Florida Child Protective Services and that Father and Mother had moved to Bakersfield within the past month. Mother and Father now live in Covina.

Mother and Father submitted to voluntary drug testing which was ultimately negative for illegal substances.

At the hearing conducted by the Kern County Juvenile Court on July 11, 2002, the section 300 petition was sustained pursuant to subdivision (b), based on the parents lack of supervision.

In a report to the court on July 29, 2002, DHS reported that Noah was placed with his paternal grandparents in Bakersfield. Mother informed the social worker that Father had a scheduled intake appointment at The Family Center on August 2, 2002, for parent training and neglect classes. On June 3, 2002, Mother informed DHS that she and Father had moved to Covina and that they had visited Noah three times since his detention and their move to Covina. Mother and Father had intake appointments although they had not yet enrolled in counseling programs.

At the dispositional hearing on July 29, 2002, the court declared Noah a dependent of the court and removed custody of Noah from the parents and placed him in the custody of DHS for suitable placement. The court found Father and Mother had minimally complied with the case plan and the court allowed Father and Mother to have supervised visits of one hour duration two times per week in Kern County, with DHS having the discretion to liberalize the visits. Additionally, the court ordered Father and Mother to participate and complete counseling to address case issues, including parent training counseling. The matter was then set for hearing by the court on January 10, 2003, pursuant to section 366.21, subdivision (f).

DHS reported on January 31, 2003, that it had received a certificate of completion from The Family Center, dated January 9, 2003, indicating Father and Mother had completed parent training. An evaluation of the home by the social worker on January 24, 2003, found the home to be appropriate. The report further stated that the county the parents reside in does not offer counseling for child neglect, and the parents were informed by their previous social worker that the parent training class that they participated in would meet the requirement of both parent training and counseling for child neglect. Therefore, at this time, the parents have completed the counseling components of their Family Reunification Case Plan. DHS, however, had concerns about returning Noah to Father and Mother as they had not visited him for approximately two months and DHS had not been able to assess parenting skills during this period of time. Seven visits had been missed by Father and Mother due largely to the expense of travel and financial difficulties. Mother and Father interacted appropriately with Noah during the visits and brought him snacks and toys.

A supplemental report submitted to the court on the same day indicated a progress report from The Family Center dated January 2, 2003, described Mother and Father as active participants who seemed interested in learning about appropriate support and nurturing of children. In the meantime, Noah was no longer residing with the paternal grandparents, but instead was living in a foster home in Kern County, the paternal grandparents having separated and were no longer able to care for him. Upon being informed of this turn of events Mother indicated to the social worker that she would look for possible relative placements. But Mother later reported there were none and requested that Noah be placed with his former foster parent if possible.

Transfer of Case to Los Angeles County.

On March 20, 2003, Los Angeles County accepted jurisdiction of the case and indicated in a minute order for that hearing that the parents visits were to be monitored in a neutral setting by a neutral monitor.

The Los Angeles County Department of Children and Family Services (DCFS) reported to the court the results of its unannounced visits to the family home on March 31, 2003, and April 18, 2003. The visits were unannounced because the family did not have a working telephone. Noah appeared happy and bonded to his parents, with no visible bruises or marks on his body. The house was clean. On May 1, when the social worker visited the home again there was an eviction notice on the door. The social worker left a message with the grandparents for the parents to contact her. When the social worker telephoned the grandfather he said the parents had taken Noah to the doctor. Father later called the social worker and left a message they were now living in Azusa Canyon, but did not leave a phone number or address.

Attached to the report was a progress report and certificate of completion for the parents from The Family Center.

A progress hearing was set by the court for May 14, 2003, to address the familys living situation and to sort out where the case was procedurally.

When Father and Mother had failed to keep DCFS apprised of their whereabouts, an ex parte application and order was sought by DCFS on May 12, 2003. In an addendum report for May 2003, DCFS advised the court that the social worker had gone to the family home which consisted of a cabin in the Azusa Mountains. Noah appeared to be happy and home appropriate. Because the cabin did not have an address, DCFS was using the grandparents address as their mailing address. Additionally, Father had acquired a job and was due to start work as a car salesman.

That day the court ordered Father and Mother into grief counseling and in-home counseling and parenting through family preservation services. DCFS was ordered to make unannounced visits to the home and ordered DCFS to verify that the social worker had appropriate transportation to visit the home due to the location and limited access to the property. Father was ordered to make a key to the outside gate and to make it available to the social worker. The social worker was ordered to contact the Forestry Service to obtain access to the home to make unannounced visits.

On May 22, 2003, Father came to the office of DCFS and gave the social worker a key to the gate located on the property. The social worker in turn gave Father referrals for grief counseling. On May 23, 2003, the family was accepted for family preservation services. DCFS contacted the National Forest Service to arrange access to the family property and the social worker and the supervising social worker made an unannounced visit to the cabin on May 28, 2003. Mother and the paternal grandmother were present. Upon noticing a small bruise on Noahs forehead an inquiry was made by the social worker. Mother and grandmother provided an explanation that the bruise occurred when Noah fell on the stairs. No other bruises or marks were observed on Noah. Mother told social worker that Father and Mother had decided to participate in grief counseling at Comforting Hearts in Covina.

Jurisdiction Hearing For Emily Under Section 300; New Facts and

Circumstances Hearing For Noah Under Section 342.

On August 27, 2003, DCFS filed a petition under section 300 on behalf of Emily who was born in August 2003, alleging that Mother had a history of amphetamine use and that Emily tested positive at birth. On the same day DCFS filed a petition on behalf of Noah under section 342 on the ground that Mother was a current user of amphetamine and that such use periodically limited[ed] Mothers ability to regularly care for Noah. Both petitions were ultimately sustained. Emily was detained and placed with foster mother, Lisa P. Mother admitted to a drug use history but denied any use during her pregnancy. Mother did admit to the use of prescription drugs. The detention report submitted to the court included prior referrals on the family, including one in particular dated in February 2003 where the allegation was made that Mother could be heard yelling at the child, using expletives, the presence of many people in the home at night consisting of mostly men, that Noah did not attend pre-school, was kept mostly indoors for days and that Mother slept all day. The disposition of the referral was inconclusive in that DCFS was unable to contact the family. Another referral in the same month originated from the social worker in Kern County who noticed Noah had a black eye and the parents had given no explanation as to the cause. The disposition of this Kern County referral was inconclusive.

According to the family preservation workers, the cabin was messy on several occasions and Noah sometimes had bruises and appeared to be unusually pale.

DCFS was informed by the doctor that she was not aware of any over-the-counter medicine that would cause a positive toxicology. Neither the social worker nor the supervising social worker were able to uncover any drug use history in the case. Mother indicated that she only took Sudafed, extra-strength Tylenol and 500 mg. Ibuprofen during her pregnancy. Mother related that she told the hospital staff she used marijuana since 15 years old, but stopped any drug use three years ago when pregnant with Noah.

At the detention hearing on August 27, 2003, the juvenile court found prima facie evidence to detain the children and gave DCFS discretion to release the children to any appropriate relatives; ordered monitored visits for Father and Mother; gave the social worker discretion to liberalize Fathers visits; ordered Father and Mother into counseling as directed by DCFS; ordered that counseling as to the father remains as previously ordered; and ordered Mother to participate in individual counseling, parenting education, and drug counseling. The court then scheduled the matter for September 3, 2003, for a pre-release investigation and further to September 22, 2003, for a pretrial resolution conference.

On September 3, 2003, the court ordered Emily and Noah to be detained with the paternal grandparents.

Ms. Cortez, the in-home worker stated the parents did not interact very much with Noah. The social worker had gone to the home on two occasions at 10:45 in the morning and Mother was just waking while Noah was playing in his playpen. When Ms Cortez inquired about the bruise on Noahs leg, Mother related that the bruise happened while Noah was playing in the creek. According to Family Preservation Services, Mother and Father tended to be rigid towards Noah. Mother and Father were starting their grief counseling at ENKI just as the case family preservation was ending. Josh Curiel, the in-home Counselor, Teaching and Demonstrator, noted that he was starting to build a rapport with the family and Mother was starting to talk about the death of Alexia. Father and Mother visited Emily and Noah without incident, but DCFS had concerns about the parents ability to appropriately care and supervise the children. Attached to the DCFS report was a negative drug result on Mother. At the September 22, 2003, hearing, the juvenile court ordered Noah to be referred for a speech evaluation.

On October 21, 2003, at the jurisdictional/disposition hearing issues pertaining thereto were settled by mediation. The court sustained the section 300, subdivision (b) petition as to Emily and the section 342 petition as to Noah. The court declared the children dependents; removed custody from the parents; ordered the children placed with the paternal grandparents; ordered family reunification services; ordered Mother to complete drug rehabilitation with random testing, individual counseling to address case issues, grief counseling, and parenting, as well as a parent education program. Father was ordered to randomly complete drug testing 10 times; complete a parent education program; and participate in individual counseling to address the same issues as Mother and to attend Alanon. The court further ordered the parents to have monitored visitation, at least twice a week for two hour visits and gave DCFS discretion to liberalize the visits. The matter was then continued to December 16, 2003, for a progress report, and to April 12, 2004, for a section 366.21, subdivision (e) six month review hearing.

DCFS reported in its progress report that Mother had been testing negative for drugs and had enrolled in a drug counseling program at NCADD which provided testing, parenting, and individual counseling. Father had also tested negative eight times and once failed to provide a specimen. Father maintained that he had appeared for testing but was considered a no-show. This resulted in a finding that Father had failed to complete 10 clean drug tests. Documents attached to the DCFS report indicated the parents were participating in the case plan. Although not attached to the report, the appellate record contains an Alcoholics Anonymous sign-in card for Mother and a certificate of completion from the Family Center.

The court liberalized Mothers visits to unmonitored in placement and granted DCFS discretion to liberalize further. Fathers visits were ordered liberalized provided Father was complying with the case plan. The court ordered DCFS to contact the testing center to address the last test the father was not able to take.

On April 12, 2004, DCFS reported that the parents were attending the programs at NCADD, but that Father had stopped attending parenting classes in January due to work, but related they were going to offer parenting classes at night starting in mid-February. Father related he was sure Mother was not using drugs and that she was a very good mother. Father said he and Mother had a hard time after Alexia died and they neglected Noah but that they were now recovering. Concerning the report that Mother covered Noahs mouth with her hand, Father said he had seen Mother do this at the mall but that Noah had been diagnosed with ADHD and was difficult to care for.

Mother seemed devoted to her children, according to the social worker and bathed and fed Emily and provided structured rules for Noah who listened to Mother and sought her out for comfort and affirmation. Mother indicated she was not ready to have Emily as she was still affected by Alexias sudden death. The paternal grandmother told the social worker she would like to continue caring for Emily but felt that Noah was too much for her to care for. Noah was attending speech therapy.

Mother, in the meantime was in compliance with the case plan. Norma Rodriguez, a Recovery Specialist at NCADD, reported that Mother seemed to want to make a positive change in her life. Mother had not attended any individual counseling in March due to owing back payments and not knowing whether she could pay by deferred payment. Mother expected to complete the program in two months. Mothers progress was slow because being greatly affected by her babys death, according to the opinion of Ms. Rodriguez. Mother had missed a test around Christmas time but had been testing negative for drugs. Father and Mother were on vacation when Mother found out she was to test on December 23 and asked the paternal grandmother to advise the social worker that they were out of town and Mother subsequently asked for on-demand testing on December 24, but was not able to test.

Father was participating in programs but due to a change in his work schedule and a change in counselors he was not participating in the programs. At the end of March Father was reinstated in the programs. Except for a missed test in October and on December 23, Father had been testing negative for drugs.

Mother and Father visited three to four times a week for two hours duration on each visit. Noah and Emily were excited to see them and enjoyed the visits. Mother never made the appearance of being under the influence. Fathers visits were liberalized by DCFS to unmonitored after receiving a letter from the testing laboratory that the Father was not able to test because of a long line.

The recommendation of DCFS was that Noah be ordered home-of-parents and that family maintenance services be provided and that they have unmonitored visits, including overnights with Emily.

Home-of-Parent-Father Placement For Noah.

The court ordered Noah to be placed in the home of parent (Father) at the section 366.21, subdivision (e) hearing and ordered DCFS to make unannounced home visits. Mother was ordered to submit to on-demand testing. The court found that the parents were in compliance with the case plan and then continued the matter to October 6, 2004, for a section 364 hearing for Noah and a section 366.21, subdivision (f) hearing for Emily.

At the hearing, DCFS reported that Noah appeared happy and well at the family home; Mother was cooperative and interacted appropriately with Noah, that Mother tested negative for drugs but missed a couple of drug tests due to hurting her back and having to go to the emergency room and a second time when she had to work and could not get a ride to the testing site. The social worker recommended that Mothers visits with Emily should not be liberalized until Mother provided a note from her boss. On the date of the DCFS report to the court, Mother had not provided the note, but in an Information For Court Officer a letter was submitted from Mothers supervisor stating that Mother was at work on August 16, 2004. Otherwise, Mother had completed parenting at NCADD on April 8, 2004, which program included 24 group counseling sessions, 24 individual counseling sessions, 12 parenting classes, and 24 step meetings. Father indicated he continued to attend AA meetings but could not find the papers to verify his attendance. Father reported he had not attended his programs because of his work schedule. According to the paternal grandfather Mother did not seem to pay much attention to Emily.

On the day of the hearing, DCFS told the court that Mother was asked to give an on-demand test after missing a test on September 28. On September 29 Mother tested positive for amphetamine and methamphetamine.

The court found at the time of the hearing that Mother was in partial compliance with the case plan and Father was in compliance. DCFS was ordered to test Mother on demand with the provision that if Mother tested positive for drugs and missed a test, she was to complete a drug rehabilitation program and move out of the home and her visits with Noah were to be monitored. The court ordered that Father was not to be monitored and the matter was continued to February 24, 2005, for a section 366.22 hearing for Emily, and to April 6, 2005, for a section 364 hearing for Noah. The paternal grandparents informed DCFS on February 24, 2005, that the parents were not bonded to Emily and did not take care of her, indicating that Mother yelled at Noah often and Noah appeared to be afraid of Mother. Father described Noah as having behavior problems but that he was comfortable with Mother watching Noah. Accordingly, the social worker referred Noah for behavior treatment. Because of financial hardship the paternal grandparents asked Father to move out of the home and back into the cabin. Father said the paternal grandmother was critical of the way they cared for Emily and did not want to return her to them. The social worker informed Father that Mother would have to move out of the home because Mother missed four drug tests. Father had not been participating in any of the court-ordered programs.

The section 366.22 hearing was continued to March 29 for a contested hearing and was then taken off calendar because the court found the parents to be in partial compliance with the case plan and terminated reunification services. The paternal grandparents, identified as prospective legal guardians, were permitted to monitor Mothers visits with Emily. The matter was scheduled for a section 366.26 hearing on June 28, 2005.

At the section 364 hearing on April 6, 2005, as to Noah, DCFS reported that Mother had failed to test after moving out of the family home. Mother had no telephone number or address to provide and had also quit her job because she could not stand working at night. Father believed that Mother was living on the streets but was skeptical she was using drugs because she had completed a program and was acting normally. Father also indicated he had attended Alanon meetings but had lost his card and did not want to return and did not have the money to finish the program. Additionally, Father said he did not have $1,700 to pay for the behavior treatment for Noah at Sycamore. Father did obtain a new medical program for Noah but was waiting for a new number in order to find out whether Noah qualified for free services.

On March 23, 2005, the social worker made an unannounced visit to the home and found Noah to be healthy and happy and very active and talkative but difficult to understand. Noah was attending weekly speech therapy, but did have a bruise on his forehead and explained that Father had hit him. The parents denied this account and the grandparents said they saw Noah fall on the step and hit his head. The grandparents denied ever having seen Father hit Noah.

Father reported that Mother visited Noah about three times a week for about two hours each visit and the visits went well.

The court ordered Noah to remain home-of-parent-father so long as Father lived with the paternal grandparents, but if Father wanted to move the court was asked by DCFS to consider placing Noah with the grandparents. The matter was continued to September 26, 2005, for a section 364 hearing.

Motion of Robin F. For De Facto Parenthood Status.

On June 28, 2005, a petition under section 388 was filed by Robin F. declaring she was the maternal great-aunt of the children and stating she had maintained a life-long interest in Mother and a consistent interest in her children throughout their young lives. She described the maternal side of their family and their interest in Mothers whereabouts and gave information about the life of Mother. Robin F. indicated that she and other members of the family had met with Kern County Deputy County Counsel as well as the DHS worker. Robin F. also indicated she had spoken with Noahs attorney and police investigators from Bakersfield. Robin F. indicated she had made many requests of the social worker to visit Noah and Emily and stated she had participated in foster parent classes and had submitted to a criminal background check. Robin F. indicated she had offered herself as an available adoptive placement for Emily and to care for Noah. Robin F. asked for visitation with the children, consideration as placement for Noah and Emily and for de facto parent status. Attached were documents from the Kern County DHS case, a declaration from the maternal step-grandfather detailing a visit to the paternal grandparents home where the children and parents were which raised various concerns about the paternal side of the family, a completion certificate for foster family home orientation, schedules of classes for foster and kinship care education, and a letter from the maternal great-great aunt. Separately filed by Robin F. was a De Facto Parent Request, dated June 28, 2005, with the same attachments, accompanied with points and authorities.

DCFS submitted on June 28, 2005, an Information for Court Officer stating concerns it shared about Emilys placement with the paternal grandmother, which concerns had originally been raised by Robin F. The social worker had made several unsuccessful attempts to contact Robin F. by telephone, however, the social worker who had evaluated Robin F.s home relayed the aunts allegation regarding the paternal grandmothers alcohol use. An adoptions social worker had also smelled alcohol on the breath of the grandmother. In 1998 the grandmother had a DUI conviction. Robin F. also said that Noah lived with his father in an uninsulated garage, the paternal grandmothers home was in a deplorable condition and was cleaned only when a visit was expected from DCFS. Robin F. also reported that Father hit Noah on the head and DCFS was in the process of investigating the allegations.

A section 366.26 report had been prepared earlier for that date and noted that Emily had lived with the paternal grandparents since shortly after her birth and that Father lived with Noah in a separate part of the house. The grandparents stated that Mother came and visited Emily inconsistently and the social worker believed Mother may be living with Father. Grandmother had a DUI in 1998 in the state of Nevada and seemed to show little remorse about it and denied any current alcohol use.

One of the concerns of DCFS was that the grandmother was seeking a legal guardianship so that she could eventually turn Emily over to the parents once jurisdiction was terminated. Although demonstrating some reluctance, grandmother agreed to bring Noah in for an interview with the social worker. During the interview Noah stated that Father and Mother hit him and Mother was living in the home, but there were no bruises or marks on him. Noah had made such a comment to the social worker a few months prior to that time, but Mother and Father indicated that Noah had fallen.

DCFS made the recommendation that while allegations were being investigated Emily be placed in long term foster care and placement be monitored.

Robin F. was present with her private attorney on June 28 and the court granted her monitored visits once or twice a week with both children with discretion vested in DCFS to liberalize the visits. The petition of Robin F. was continued for responses and the section 366.26 hearing was continued to September 26, 2005.

The paternal grandparents also filed a request for de facto parent status on July 6, 2005, on the basis that Robin F. had not been in the lives of the children until now and that the last time the mother saw Robin F. was when she was four or five years old. The grandparents also related that they had no intention of returning Emily to the parents once they had adopted her. The parents did not interact with Emily and they loved her as their own child and would continue to be there for her. The court granted a hearing on the request for July 29, 2005.

For that hearing DCFS informed the court that there were no new concerns or developments. Robin F. appeared at the July 29, 2005, hearing as did the paternal grandparents. The court granted the request of both parties for de facto parent status. Upon granting the request of Robin F. the court stated it really has to consider whether the person should provide information to counsel that would be helpful to the court and she has certainly provided some information that has been helpful to the court today. . . . The court also lifted the monitor on visits by Robin F. with instructions to DCFS to bring the matter back to the courts attention if reasons existed to have the visits monitored.

Further Hearings Under Sections 364 and 366.26.

At the September 26, 2005, hearings, DCFS reported that Father was able to look for work while the grandparents watched Noah. Father was found by the social worker to be sincere in his concerns for Noahs well being and development and was aware of his duty to protect Noah from Mothers drug use. Mother had not been testing since leaving the family home and indicated to the social worker that she did not have a stable living situation. Mother visited the children almost every day with Noah enjoying his visits with Mother very much. Emily saw Mother more as an aunt and looked to the grandparents for her needs. DCFS made unannounced visits to the family home on numerous occasions and did not find Mother present. The grandparents were cooperating to make sure Mother did not live in the home.

Father ventured the opinion that counseling by three different people from Sycamore three times a week from in the family home was excessive and that once a week outside the home was sufficient. Noah inquired if he would be taken away and became confused when three people asked him questions. A referral on July 25, 2005, alleging that Noah slept on a broken bed in the garage prompted a group of police officers, medical personnel and emergency response social worker to visit the family home which Noah found to be horrifying and caused him to hide. Noah made random comments to the social worker on July 11, 2005, indicating that his parents were dead, his mother wanted him to eat a salad under his bed with a two headed snake and relating to activities they did at Aunt Jennys house, a place that Father had never been to. Some of Noahs behavior was concerning such as making up stories, being defiant, and being cruel to pets, but Father seemed to know how to handle these behavior traits. Noahs speech appeared to be becoming more clear and he seemed happy and healthy and had started kindergarten.

Father appeared to the social worker to be honest and sincere and exhibited a loving concern for Noah and was capable of taking care of the child. On September 6, 2005, the social worker met with the parents and grandparents. Father and Mother agreed that it would be in Emilys best interest to be raised by the paternal grandparents who recognized them as her parents. Mother and Father acknowledged they were overwhelmed by raising Noah and would not be able to give the care to Emily that the grandparents could give. Emily was happy with the grandparents who displayed a willingness to adopt her should the court permit. The grandparents were also willing to help Father if he needed assistance in the raising of Noah. The grandparents loved Emily and took good care of her and were committed to her.

The social worker recalled seeing a red spot on Noahs forehead and when asked about it Noah said Father hit him on the head. The grandparents, however, explained that Father left for work early that morning and that Noah did not have the spot on his forehead the night before. The social worker asked Noah if Father hit him on places on his body and was told by Noah he hit his head on the door. Father was described by the social worker as a mild person who seemed able to control his temper and who cared for Noah. Father believed Noah needed him, needed stability, and was very concerned about Noahs welfare. Two allegations regarding Noah in June and July 2005 were closed as unfounded.

The social worker was told by the parents that they had not seen Robin F. for 13 years and that they wanted to become acquainted with her before Robin F. began having nine hour visits with Noah and Emily. Robin F., however, refused to talk to the parents and told them to talk to their own attorneys. Robin F. indicated she refused to talk with them in front of Noah because they were angry. Meanwhile Father and Mother said they had no objection if she visited and desired that she do so as a family member and not through the courts. Mother indicated that Robin F. had called the paternal grandmother on the telephone and made her cry. Robin F. and the paternal side of the family did not get along. The social worker spoke with Robin F. who said the paternal family lied and Robin F. was almost yelling with anger when she spoke about the paternal side of the family and the social worker had to tell her to lower her voice. Robin F. visited the children for a day once a week. Emily cried on one visit when Robin F. picked her up. It appeared to the paternal grandmother that Emily did not want to go but Robin F. explained it was because Emily wanted to play in the park as opposed to getting in the car. Father and the paternal grandparents did not mind Robin F. visiting the children, however, Father wished Robin F. were more civilized and more family oriented.

DCFS recommended that the court terminate jurisdiction over Noah and grant legal guardianship of Emily to the paternal grandparents. Robin F.s visits needed to be worked out by the family.

On September 26, 2005, Robin F. appeared with her attorney and the court found that notice of the hearing had been properly given. Robin F.s attorney sought clarification from the court as to visits, but the attorney for Father indicated he did not know Robin F. and she had not consulted him about visits. The court ordered the parties to consult and work out a visitation program. The court then permitted visitations by Robin F. for a four hour duration one time a week. The court also ordered DCFS to investigate allegations made on June 28, 2005, and then continued the matter to November 7, 2005, for hearings under sections 364 and 366.26.

The social worker reported on November 7, 2005, that she had spoken with the clinician from Sycamore in-home services in October. She had seen Noah only three times. Father and Noah seemed overwhelmed that Noah had been seen by so many people regarding a referral that had been called in. On July 7, 2005, Father terminated in-home services.

Robin F. continued to visit the children with the exception of October 8 because Noah had been sick the week before during a visit by her. Thirty minutes before the scheduled visit Robin F. called and indicated she would not keep the visit with the children unless a note was obtained from the doctor indicating Noah was healthy. One of the children was ill each time Robin F. was scheduled for a visit on October 14 and 16. On another visit Noah returned sunburned. Robin F. indicated she had not put sunscreen on the child because the pool was located in a shaded area. Father reported that Robin F. took Noah swimming in the park pool despite the fact that Noah was throwing up before the visit. The grandmother wrote to the social worker and complained that Emily was returned from a visit yelling and screaming. Photographs existed which showed Noahs sunburn and Emilys diaper rash. On October 6 the social worker called to change the visits to four hours, but the call was unreturned forcing the social worker to call the emergency number of Robin F. A person by the name of Max answered the phone and said he would have Robin F. call back in a few minutes, but the call was never returned by Robin F. so the social worker left a message on her answering machine. On October 22 Robin F. had a nine hour visit.

Noah told the social worker about the activities he did with Robin F. but was happy to return home. Father and grandmother reported that Noah slept or laid down the entire next day which was unusual for him. Noah denied that Father hit him and it was his desire to live with his parents.

Father showed the social worker a note from Noahs teachers outlining his behavior at school which included disturbing the class, walking around and hitting other students. Father was working with the school psychologist who recommended that Noah see a neurologist. Father had taken Noah to his primary doctor and was seeking approval for a visit to the neurologist. Father had also made an IEP request and Noah was participating in speech therapy and Father was attempting to sit in class to keep Noah occupied.

The grandparents had not observed Mother to act in any drug related way and Mother tested negative for drugs twice in October.

On numerous unannounced visits the social worker did not observe any indication that Mother was living in the home. Grandparents understood the importance of Mother not residing in the home and were careful not to jeopardize the placement of Emily with them. Mother was attempting to be there as often as possible to provide Noah with stability. Father informed the social worker that no one had told Noah that his mother did not live there. During a June visit the social worker reported no smell of alcohol on the grandparents and the grandmother had completed a DUI course as ordered by the court. The social worker believed the grandparents were sincere in their love for the children and had never observed any unfitness for the children to be placed in their care. Neither the childrens pediatrician nor the Sycamore in-home clinician had seen any bruises on the children that would indicate physical abuse.

DCFS recommended Noah be ordered home-of-parent, jurisdiction be terminated over Noah, that legal guardianship be granted to the paternal grandparents over Emily, that the case be closed and that the de facto statuses and Robin F.s unmonitored visitation order be lifted.

On November 7, 2005, Robin F. filed a declaration with the court referring to discussions she had with her attorney about substituting out and responding to statements from the DCFS. She also indicated she had received DCFS reports from her attorneys and asked, among other things, that her de facto parent status and visitation be left intact. Attached were a variety of documents which included DCFSs report dated September 26, 2005, a facsimile cover sheet from the Office of the County Counsel to Robin F.s attorney indicating that the November 7, 2005, supplemental report with the Title Twentys were attached with hard copies to follow, the supplemental report dated November 7, 2005, a page from a DCFS contact sheet, e-mails between Robin F.s attorney and counsel for DCFS in regards to Robin F.s visitation, a July 7, 2005, letter from Robin F. to Cheryl Richardson, the home study worker stating And lst, per our discussion, please keep my address, phone number, other contacts and their and information confidential, from anyone who can leak it to the [paternal family] or anyone who may know them. And please pass this on to anyone at DCFS who is part of the B[.] case. . . . My attorney and I will have to pre approve any release of addresses, phone numbers, contacts, information, etc. I supply . . . Robin F. also indicated she made a confidentiality request to the social worker assigned to the case.

On November 7, 2005, Robin F. appeared at the hearing with attorney and withdrew her request for substitution of attorney. Counsel for DCFS asked the court to reconsider the de facto parent status of Robin F. and/or reduce her visitation with the children to four hours once a month in view of the fact that her current visitations were very disruptive and [t]hey are essentially with someone who has never been involved in their lives. . . . Counsel for the children did not take issue with the visits. Mother and Father joined in the position of DCFS. Robin F.s attorney asked that his clients address be confidential and that it not be provided in these reports to the log notes or Title Twentys, and that reference to it in the notes and report need to be redacted before the reports are given to the parties. Her attorney then said that Father had been to her home on one occasion. Counsel for DCFS then indicated there was no confidentiality order in place nor had any information been presented to support such an order. Regardless, counsel argued that the Father and paternal grandparents had every right to know where the children were being taken on visits unless there was information that Father and grandparents posed a risk to Robin F.

Paternal Grandparents Appointed Guardians of Emily.

A hearing date to determine termination of jurisdiction over Noah was set in three months, the court declining to terminate jurisdiction on that date because it wanted assurances of Mothers compliance and that the Father and grandparents were following the courts orders. The court ordered Mothers visits could continue unmonitored in the grandparents home so long as Mother was in compliance with the case plan, which included testing clean. The court further ordered that Robin F. could continue to have visits with the children for two to four hours twice a month and the social worker was to be present at some of those visits.

As to Emily, the court appointed the paternal grandparents as her legal guardians. Under oath the grandparents agreed to make all decisions regarding Emilys welfare, including parental visitations. Letters of guardianship were issued and no objections were made.

At the end of the hearing counsel for DCFS inquired if a ruling was to be made on the confidentiality issue and the court indicated I dont think there is one. The matter was then continued to February 6, 2006, for a progress report and to May 8, 2006, for a section 364 hearing and consideration for a permanent plan

On February 6, 2006, DCFS reported that Mother was testing clean but had missed a test on December 28, 2005, because she had given birth to a son, Caleb B. the day before. Mother was tested on the 28th and the test was negative for drugs. Mother was also attending AA meetings before giving birth and indicated she had attended three NA meetings since Caleb was born but could not find the paper but indicated she would provide it to the social worker when it was found. An Information for Court Officer stated Father, Noah and Caleb had been ill and therefore Mother had been unable to attend NA meetings in January 2006. Confirming hospital records and doctors notes were attached. Mother did test positive for opiate on the 28th but that was because of the Tylenol Codeine she was taking for pain. Mother visited the children daily and the grandparents reported that Father and Mother were loving and attentive towards the children.

In the meantime, Noah had been placed on medication because of his hyperactivity and behavior. Father said the medicine seemed to help as Noah had improved at home and at school. On a visit, the social worker saw that Father was patient with Noah and Noah was able to focus on the task of doing his homework.

Emily appeared happy and comfortable with her grandparents and looked healthy.

Visits with Robin F. were described as a struggle. Since the November 7 court date Robin F. had failed to contact DCFS until December 19. She then wanted to visit with the children on Christmas Eve and New Years. Robin F. was very angry with the social worker and Mother and Father and grandparents were perplexed by the visitation arrangement and the social worker was of the opinion that the visits caused undue stress to the family and were disturbing to Noah and Emily.

DCFS recommended that Mother be permitted to live with Father in the paternal grandparents home with family maintenance services and Robin F.s de facto parent status be terminated as Noah was placed with the father and Emily was committed to legal guardianship and her visits be at the discretion of the parents and legal guardians.

Robin F. appeared with her attorney at the February 6, 2006, hearing and the court permitted Mother to return home. Visits with Noah were now unmonitored. Counsel for Robin F. objected to the termination of de facto parent status without an evidentiary hearing. The court granted a contested hearing on the issue and set a court date for March 29, 2006. All parties were ordered to return to court that day, although no hearing took place on March 29.

March 24, 2006, Hearing.

DCFS reported on March 24, 2006, Mother attended NA meetings in February and had tested clean for drugs four times. Father reported that Noah had changed since Mother came home. He was more cooperative and was getting Mothers full attention. Paternal grandfather said Mother was taking care of the baby, acting responsibly, doing things around the house and generally doing very well. Mother said she was very happy to be home again and that Father referred to her as super mom and she would never again use drugs.

Emily was growing and developing and was healthy.

When the social worker visited, Noah was playing with a friend and the social worker asked Noah about his visits with Robin F. who responded they had pizza and played games. In response to whether he had a good time playing at the park Noah said he did not know about that at all. Mother, Father and grandparents also observed that normally Noah was verbal about other things, would say he did not know or could not tell when commenting about the visits with Robin F. All were concerned and Father noted that Noah returned from the visits hungry and sunburnt. The paternal grandmother said that Robin F. told her she brought drinks and sandwiches to the visits. Yet, Noah told her he did not eat or drink during the four hour visits. Noah came home with sand in his hair after one visit because he had been throwing it around. Father reported that Noah is not allowed to do that. Noah also came home with a sore ankle, scratches, and a bump. The paternal grandfather also said that Emily is permitted to do whatever she wanted on the visits.

Noah had an active IEP and also participated in a speech program.

The hearing for March 24, 2006, was continued to May 8, 2006, because notice was not proper as to Robin F. and her counsel, neither of whom had been present on March 24, 2006. However, during the hearing someone said to the court that Noah had ADHD and Robin F. lets him do whatever he pleases, that he did not listen when he returned home and that Robin F. says Noahs medication was a problem. The court indicated it could not discuss anything, that Robin F.s attorney needed to be there and ordered her visits to be once a month before the next hearing on May 8, 2006, and that the social worker needed to observe the visits.

On April 14, 2006, Robin F. filed a notice of appeal, stating neither she nor her attorney had been notified of the hearing and that her visits had been reduced. In an attached handwritten statement, she wrote that the caretakers had her contact information and that DCFS intentionally leaked [it] in a court report to all parties even though she wanted that information to remain confidential for good cause.

May 8, 2006, Hearing.

In anticipation of the May 8, 2006, hearing, the DCA social worker reported sending a letter to Robin F. on April 12, 2006, advising her of her visitation schedule. Robin F. was scheduled for a visit on April 23, 2006, and the social worker contacted the grandparents on April 22 to determine if Robin F. had contacted them about the next days visit. The grandparents indicated that Robin F. usually called at 9:00 a.m. on the day of the visit. At 10:00 a.m. the next day the social worker called the grandparents and asked whether Robin F. had called, which she had not, but the paternal grandfather said he would still take the children to the park to meet her because he did not have a way of contacting her. The paternal grandfather, the children and the social worker were at the park by 10:30 which was the usual location and time of the visits. They waited until 11:00 and Robin F. did not show up nor did she call anyone to cancel the visit.

During a March 26, 2006, visit Noah returned with scratches on his neck and back and a bump on his head. Noah said he liked the visits because Robin F. gave him gifts but he was not allowed to bring them home.

Father was working full time at Wal-Mart and had just bought a car and was in the process of getting his drivers license back. Mother was doing well and did not feel overwhelmed and was not using drugs and was continuing to attend NA meetings and test negative. The parents and grandparents stated they wished for Robin F. to visit as a family member and not pursuant to a court order.

Notices to Robin F. and her attorney were submitted with the report.

At the May 8, 2006, hearing, Robin F. and her attorney were present. The court found there was no longer any risk to the children. Mother was in compliance and the grandparents had been providing Emily with a stable home. The court