In re Mariah G

Filed 4/10/06 In re Mariah G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

John L. Dodd & Associates and Lisa A. DiGrazia under appointment by the Court of Appeal for Defendant and Appellant.

Joe S. Rank, County Counsel and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Sharon M. Jones, under appointment by the Court of Appeal, for Minors.

Defendant Veronica A. appeals from an order terminating her parental rights to Mariah G. and Jose G. under Welfare and Institutions Code section 366.26.^[1] She asserts that the juvenile court erred in failing to apply the benefit exception to adoptive placement embodied in section 366.26, subdivision (c)(1)(A), both because the evidence before the court demonstrated that the exception applied and because the Riverside County Department of Public Social Services (DPSS) was at fault for her failure to establish the exception. She seeks remand with directions that the juvenile court establish a permanent plan of legal guardianship for the children. We affirm the order.

Facts and Procedural History

Veronica A.'s eight children, including the two youngest, Mariah G. then aged two years and Jose G., then aged one month, were originally detained on October 28, 2001, under section 300, subdivisions (b) and (g), failure to protect and failure to support. Among the causes of the detention were Veronica A.'s admitted use of illegal drugs, her leaving four of the children with a caretaker who used drugs and abandoned them, her use of corporal punishment, her participation in domestic violence, her failure to obtain appropriate medical care for Jose G., and her failure to keep a clean home with beds for the children.

The jurisdiction/disposition report indicated that the family members, especially the children have expressed great love for each other and the parents clearly care for their children. All of the family members old enough to, expressed a desire to reunite. Most of the children fell apart emotionally after a family visit. Despite Veronica A.'s concern, however, Mariah G. was calm after that visit compared to her older siblings. On November 21, 2001, the children were found to come within section 300 subdivisions (b) and (g) and were adjudged dependents of the court. DPSS was to provide services to the parents.

At the six month review hearing DPSS recommended that Veronica A., who was participating in services, receive six months of additional services and that Mariah G. and Jose G. be placed with her in the MFI inpatient drug treatment program in which she was participating, upon counselor approval. DPSS noted that Mariah G. obviously spent a large amount of time with Veronica A. and experienced the most extreme emotional outbursts after family visits, though she was becoming more accepting of leaving her mother after visits. She had twice monthly visits with the children who were bonded to her and wanted to return home. The father was incarcerated for two years for a parole violation and had not participated in any services. Services for him were terminated on July 11, 2002. At the hearing on May 21, 2002, the juvenile court ordered continued services for Veronica A. and authorized DPSS to place Mariah G. and Jose G. with her as long as she remained compliant with her case plan and in the drug treatment facility.

Six months later DPSS recommended that Veronica A. have custody of all of her children for a 30-day transitional visit and that family maintenance and reunification services be offered for an additional six months. Mariah G. and Jose G. had been placed with her previously. On November 25, 2002, the juvenile court ordered that Mariah G. and Jose G. remain in their mother's custody with family maintenance services. It authorized a 30-day visit for the other six children. After that visit the juvenile court ordered that all the children be returned to Veronica A. and that family maintenance services be provided.

Six months later DPSS recommended that the dependency be terminated as to all eight children, Veronica A. having provided appropriate care for them and having addressed her substance abuse issues. However, on May 28, 2003, the juvenile court maintained jurisdiction and ordered additional family maintenance services based upon an agreement between the parties.

Three months later DPSS continued to recommend that the dependency be terminated as the children remained adequately cared for by their mother. However, at counsels' request the hearing was continued for an additional three months. At that time Veronica A. had tested dirty for methamphetamines at the birth of her ninth child, who was removed from her, in August 2003, and DPSS recommended that she participate in inpatient drug treatment and be provided six months of additional reunification services. Veronica A. had relapsed in her drug use, had not been regularly attending her drug treatment sessions and was having difficulty coping with her children. They accepted the possibility of living with relatives while their mother sought help. DPSS felt that the children's bond among themselves was such that they should not be separated. On November 26, 2003, the juvenile court allowed Veronica A. to maintain custody of the children under the supervision of DPSS, and ordered her to participate in services.

Both four and five and one-half months later DPSS again recommended that the dependency be terminated as to the eight older children because the mother was providing appropriate care for them. She had been treating her drug addiction but had recently missed tests and tested dirty. This was viewed as a relapse that was a normal part of the recovery process. Veronica A. was willing to relinquish her parental rights to the youngest child if a relative would adopt him. Both Mariah G. and Jose G. were well cared for and it was clear that the children were very bonded to their mother and to each other. On May 18, 2004, the juvenile court allowed the children to remain with Veronica A. under DPSS supervision.

On July 12, 2004 supplemental petitions were filed under section 387 and the children were removed from their home as Veronica A. had been discharged from her drug treatment program for excessive absences, had tested positive for methamphetamines three times, and had been evicted from her residence. DPSS recommended that the children be detained and that Veronica A. maintain sobriety for one year before the children be returned to her care. A maternal aunt, Romona C. was willing to care for the children and visitation was recommended to be frequent and liberal so long as Veronica A. was not under the influence. The following day the juvenile court found that continued placement in Veronica A.'s home was contrary to the children's welfare and probable cause existed for their detention. They were ordered removed from her care and frequent and liberal visitation of at least once a week was ordered as directed by DPSS.

The jurisdiction/disposition report recommended that family maintenance services be terminated due to Veronica A.'s noncompliance with the case plan regarding treatment for her drug addiction, that a planned permanent living arrangement be established for the children and that the case be transferred to Kern County where Veronica A. had moved. Mariah G., Jose G. and their younger brother were placed with Romona C. in Bakersfield, while the older boys were placed together and the older girls were placed together in local foster homes. Both Veronica A. and the children expressed a desire that Romona C. should keep the children. DPSS recognized that Veronica A. was bonded to her children and they to her, and that the children wanted to stay together. An addendum recommended that Romona C. be granted legal guardianship over the children, with the exception that she adopt those under age four. DPSS had been attempting to contact Veronica A. regarding visitation, but she had not been home when the social worker called. Romona C. has nine children of her own (only four of whom lived with her) so that plans to obtain a larger residence and to provide other assistance for her needed to be arranged before the children could be placed with her. On August 26, 2004, the juvenile court found that the children came within the provisions of section 387 and continued them as dependents of the court, finding the permanent plan of legal guardianship appropriate. It terminated reunification services and set a hearing under section 366.26. DPSS was ordered to assist Romona C. in obtaining adequate housing and to assist Veronica A. in visiting with the children, including phone visits and transportation.

Two months later DPSS continued to recommend that the children be placed with their maternal aunt, Romona C., under a plan of permanent guardianship with the exception of the youngest child, who she would adopt. At that time DPSS indicated that the children had been able to maintain contact with their mother, grandmother and each other. However, it also stated that it had been unable to discuss visitation with Veronica A. who now wanted her children to go to another sister. Mariah G. had begun school but missed her mother. DPSS had arranged for bi-weekly visitation between the children. Veronica A. was aware of those meetings and attended those that she chose to. There had been telephone contact between the children and their mother. The social worker had not had a productive conversation with Veronica A. since the last hearing. The case plan called for visitation between Veronica A. and the children twice per month.

By December 21, 2004, DPSS was recommending that the two older girls, at their request, be placed in long term foster care with their current caretaker and that the other children, with the exception of the youngest who would be adopted, be placed with Romona C. as their legal guardian. The visitation was described to be as in the last report. DPSS recommended that the juvenile court refrain from terminating Veronica A.'s parental rights under section 366.26 subdivision (c)(1)(A)(B)(D) and (E), with the exception of the youngest child. On January 3, 2005, the juvenile court found the permanent plan of legal guardianship appropriate for the two older girls and ordered it.

An addendum report suggested that the four older boys remain in foster care but otherwise continued the prior recommendations. Veronica A. and Romona C. had had a disagreement over the children such that the mother no longer wished them to be placed with her, but preferred another sister. Veronica A. accused Romona C. of wanting the children only for the money and of abusing them. A social worker reported that Veronica A. told Mariah G. to say that Romona C. was abusing her, which the child denied. Kern County Children's Services was investigating. DPSS felt that the friction between the sisters would create unnecessary stress on the older children should they be placed with Romona C. Veronica A. participated in one visit with the children on October 10, 2004, but verbally abused the social worker, embarrassing and emotionally upsetting the children. The social worker observed that over the years of his involvement there was a love and bond with the family that needed to be nurtured. At the time of Romona C.'s adoption home study, Mariah G. still believed that she would be returning to her mother. Romona C. was approved and recommended as an adoptive parent for the youngest child.

On February 2, 2005, the juvenile court found that the four older boys and Mariah G. and Jose G. were not proper subjects for adoption and that there was no one willing to accept legal guardianship. Thus, the permanent living arrangement with the current foster homes and with Romona C. was ordered with the goal of legal guardianship for the older boys and the goal of adoption for Mariah G. and Jose G.

Three months later, on May 5, 2005, DPSS recommended that Veronica A.'s parental rights to Mariah G. and Jose G. be terminated and that the children be placed for adoption by Romona C. Mariah G. was no longer asking about her mother, who had made no effort to contact Romona C. about visiting the children and had not contacted the social worker regarding them. As of September 1, 2005, DPSS's recommendations remained the same as to Mariah G. and Jose G., who were now bonded to Romona C. Mariah G. still was not inquiring after her mother. Veronica A. had called DPSS to request visitation but had failed to make visitation arrangements since the last report. Though she left several phone numbers, DPSS was unable to contact her at any of them. DPSS was recommending that visitation be approved by Romona C. based upon detriment to the children. On September 15, 2005, Veronica A. requested a continuance of the hearing to allow her to file a motion under section 388 based upon her completion of a parenting class, her attendance at NA/AA meetings three times per day and at a relapse prevention class. However, she had not completed a substance abuse treatment program. The juvenile court denied the request based upon insufficient evidence in the offer of proof to support a full hearing on the matter. It was stipulated that Veronica A. would testify that she called the social worker and his supervisor almost every day to set up visits or phone calls with the children but had not been provided with any visits or calls since the last hearing. Mariah G. had phoned her one time, approximately two weeks earlier. The juvenile court found that adoption was in the best interests of Mariah G. and Jose G. and terminated Veronica A.'s parental rights. This appeal followed.

Discussion

Veronica A. contends that the juvenile court erred when it failed to apply the exception to the termination of parental rights and placement for adoption provided for in section 366.26, subdivision (c)(1)(A) because the evidence showed that she had â€