Teresa Q. v. Superior Court

Filed 9/7/07 Teresa Q. v. Superior Court CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDING. Anthony Trendacosta, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition for extraordinary writ (Cal. Rules of Court, rule 8.450) denied.

Children's Law Center of Los Angeles, CLC 3, Camryn Schmidt and Patricia Meyerhoff, for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Real Party in Interest.

__________________________________________

Teresa Q. (mother) has filed a writ petition pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order denying her petition pursuant to Welfare and Institutions Code section 388,^[1]terminating family reunification services with her son, Estevan Q., and setting the underlying petition for a hearing to consider the termination of her parental rights. We find substantial evidence supports the court's order and, accordingly, deny the petition.

FACTS AND PROCEDURAL HISTORY

Estevan, now age 9, is the tenth of mother's children subject to dependency court jurisdiction. The family has a 15-year history with DCFS due to the father's physical and sexual abuse of Esteban's siblings, father's abuse of alcohol, and mother's failure to protect the children. The Los Angeles County Department of Children and Family Services (DCFS) detained Estevan in April 1998, when he was three months old, when DCFS learned father was living in the family home in violation of court orders. At the time DCFS detained Estevan, six of his older siblings were dependent children of the juvenile court, and the parents had failed to comply with court orders regarding the case plan. On July 17, 1998, the juvenile court sustained a section 300 petition as to Estevan. At the same time, the court terminated mother's reunification services with respect to his six siblings.

Estevan was returned to mother's custody at the 18-month hearing held on September 24, 1999. At that time, mother was living with her adult son, who paid most of the bills. Mother had also completed a parenting class and was participating in therapy and Family Preservation, which assisted mother in applying for welfare benefits and securing housing. However, DCFS again detained Estevan in May 2000, after the social worker learned that mother was allowing father to have unmonitored visits with Estevan in violation of the juvenile court's order. On November 1, 2000, the juvenile court sustained a supplemental petition ( 387) filed by DCFS, removed Estevan from mother's custody, and ordered that he be placed in long-term foster care.

In 2005, Estevan was placed with Edward S. (his eighth foster placement), who was also caring for some of Estevan's siblings. Although mother had moved often, she continued to show interest in visiting the children. Although Edward S. was unwilling to adopt Estevan, he was interested in pursuing a long-term guardianship. On January 10, 2006, the court set the matter for a section 366.26 hearing to consider the proposed guardianship.

On March 10, 2006, mother filed a section 388 [change of circumstances] petition requesting that Estevan be taken from the home of Edward S. and placed with mother or, in the alternative, that mother be given overnight visits with Estevan "prior to placement with mother." Mother claimed she had "undergone a transformation" and had "aptly demonstrated her commitment to parenting." Two of Estevan's siblings, 16-year-old Miguel and 14-year-old Jose, had been placed with mother and had shown improvement since being removed from foster care and returned to mother's care. Mother claimed it would be in Estevan's best interests to be placed with mother now that she was "in a position to reunite her family under the same roof."

On May 2, 2006, the court held a hearing on mother's section 388 petition in conjunction with the section 366.26 hearing for Estevan. By that time, Edward S. had informed DCFS he was no longer interested in becoming Estevan's legal guardian. Estevan's sister Alicia, who also resided in the home of Mr. S., had become hostile toward Estevan and made it clear she did not want him in the home. The court took the section 366.26 hearing off calendar and gave mother six months of reunification services with Estevan, including overnight visits. The court gave DCFS discretion to liberalize the visits "up to and including return of the minor to the mother."

On December 15, 2006, after several successful pre-placement visits, Estevan was placed in the prospective adoptive home of Salvador and Diane R. Mrs. R. told the DCFS social worker that the family was "very excited to have [Estevan] in our home. We want to make him as happy as he is going to make us." Estevan reported that he was "happy living with the [R.] family and wishes for them to become his permanent family."

In a report prepared for the 12-month hearing ( 366.21, subd. (f)), DCFS stated that mother had not visited with Estevan since September 15, 2006, had not maintained telephone contact with Estevan, and had failed to respond to attempts by the social worker to contact her.

Although the 12-month hearing was originally set for January 9, 2007, it was not held until April 23 and 24, 2007. In the interim, mother visited with Estevan four times. At the conclusion of the hearing, the court took the matter under submission. On May 22, 2007, the court issued a lengthy written order terminating mother's reunification services and setting the matter for a hearing pursuant to section 366.26. The court found, by a preponderance of the evidence, that returning Estevan to mother's care would create a substantial risk of detriment to him; that DCFS had provided reasonable reunification services; that mother had failed to comply with the case plan; and there was not a substantial likelihood that Estevan could be returned to mother's care within the ensuing six months.

DISCUSSION

We evaluate the court's findings with respect to the sufficiency of reunification services and detriment to Estevan under the substantial evidence standard of review. (In re Constance K. (1998) 61 Cal.App.4th 689, 705 [finding of detriment]; In re Misako R. (1991) 2 Cal.App.4th 538, 545 [reunification services].) We conclude that substantial evidence supports both findings.

Adequacy of reunification services

We note first of all that mother would not have been entitled to any reunification services at all absent the court's decision to grant her six months of reunification services pursuant to her section 388 petition. In Estevan's case alone, mother received family reunification services from April 1998 to September 1999, family maintenance services from September 1999 to November 2000, and reunification services again from May 2006 to February 2007 pursuant to the section 388 petition. Mother also received four years of reunification services in the proceedings involving Estevan's siblings.

In its order terminating reunification services, the court stated that the scope of reunification services pursuant to the section 388 petition was limited to visitation: "When this court granted the 388 over a year ago, including overnight visits, it was in the belief that mother would exercise that right on a regular basis, which would ultimately lead to return. However, in that time, it appears mother had a total of seven visits, including only one overnight! Visitation is an important part of any reunification plan. As noted above, the lack of visits in this case were due to mother's inability or unwillingness to exercise her right, rather than DCFS's responsibility to force the visits. Mother's failure to visit is evidence that she has failed to comply with the case plan."

Mother attributes her failure to visit Estevan on a regular basis to the fact that Estevan's caregiver, Mr. S., moved to Long Beach, and the social worker did not facilitate visits or make sufficient attempts to contact her. In fact, it was mother who moved away first, to Fontana, when Estevan was living with Mr. S. in Los Angeles. Furthermore, DCFS submitted case logs documenting (in respondent court's words) "the extensive efforts the worker made to contact the mother and service this case." The court also noted the case worker's testimony "as to the constant efforts the worker made to contact the mother on a regular basis." Mother concedes she moved several times and did not notify DCFS of her address, but attributes this to her "obvious limitations and hardships."^[2]However, as DCFS has commented, there are "many low-income, under-

educated parents in the juvenile court system who manage to regain custody of their children and remain out of the system after their cases are terminated."

Finding of detriment

Mother suggests that throughout her 15-year history with the dependency system, she was essentially a non-offending parent and it was the children's alcohol-abusing father who perpetrated the sexual and physical abuse upon the children. Mother's only offense was that she failed to protect the children from father, and she had not been in contact with him since June 2005.

It bears noting once again that there was no time during the eight years preceding the filing of mother's section 388 petition that Estevan could have been permanently returned to mother. Although DCFS had identified adoption as the permanent plan for Estevan, the court afforded mother six additional months of visitation to see if she would visit Estevan regularly and establish a relationship with him. Mother's visits with Estevan consisted primarily of trips to McDonald's, during which Estevan interacted mostly with his older brothers. Mother admittedly seemed confused during her testimony at the hearing below. Mother had not established a stable home. She had moved several times since September 2006 (and had not always notified DCFS of her whereabouts). Mother was living with her two teenage sons, Miguel and Jose, both of whom had been the subjects of juvenile delinquency petitions. Mother testified that Miguel was doing well in school, but admitted she did not know what grade he was in, had not seen his grades recently, and had not confirmed with the school that Miguel was actually attending. The evidence as a whole cast doubt upon her ability to care for Estevan permanently.

DISPOSITION

The petition for extraordinary writ is denied. Pursuant to California Rules of Court, rule 8.264(B)(3), this opinion is made final forthwith as to this court.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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

^[2] Mother had a second grade education in Mexico and read just a little.