Filed 12/14/05 In re Phillip N. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

The question raised in this appeal is whether a social services department is required to proceed by a petition to modify pursuant to Welfare and Institutions Code section 388 instead of by a regularly scheduled review hearing when it requests termination or bypass of reunification services at the end of six months.

Nancy W. appeals from the order terminating her parental rights to her son Phillip N. and placing him for adoption. (Welf. & Inst. Code, §§ 366.26, 395.)[1] She claims that her due process rights were violated when the juvenile court terminated reunification services at the six-month review hearing without the Monterey County Department of Social Services (Department) filing a section 388 petition.

BACKGROUND

On March 9, 2004, the Department filed a petition pursuant to section 300, alleging that six-year-old Phillip N. came within the provisions of section 300, subdivisions (b) [failure to protect] and (g) [no provision for support]. The petition stated that mother has seven other children, with related dependency proceedings filed for four of those.[2] The petition alleged that the family had an extensive history with Child Protective Services in Monterey County (including 16 referrals dating back to 1999) and in Minnesota, with allegations of sexual abuse, physical abuse, child neglect, homelessness and substance abuse by mother. On March 1, 2004, a social worker from Minnesota had contacted the Department in Monterey County to inform them of the child welfare case involving this family filed in Minnesota. Then on March 8, 2004, mother was arrested in Salinas on a warrant for burglary, forgery and possession of stolen property. Her children were placed in protective custody. Phillip was located in the care of his maternal uncle, a registered sex offender, and then placed in protective custody. The petition alleged that the identity of Phillip's father was unknown.[3]

The report prepared for the Jurisdiction/Disposition hearing was filed on April 13, 2004, and detailed the factual background for each of the numerous allegations in the petition. The family had an extensive history in the child protective services system, and mother had a lengthy criminal record dating back to 1995, including arrests and convictions for petty theft, carrying concealed weapons, carrying a loaded firearm in public, cruelty to a child, battery, possessing a controlled substance, disturbing the peace, commercial burglary, forgery and receiving stolen property. The report noted that seven of the mother's eight children had been exposed to severe domestic violence and drug abuse, and had frequently changed schools. Phillip was developmentally on target, but was one grade behind in school because of family transience.

In the report, the social worker expressed concern for mother's mental health problems, in that she had dramatic mood swings and had been diagnosed with an adjustment disorder in the Minnesota proceedings. The report noted that mother had been inconsistent with her visits with the children since they had been placed in protective custody, and was inconsistent in her parenting skills. The social worker recommended that Phillip and his siblings be removed from mother's care because they could not be safety maintained in her home due to her severe neglect, substance abuse, and untreated mental health issues. Although mother was in a long-term relationship with Phillip N., Sr., he was the father of only some of the children. Mother's relationships with men involved drug abuse, alcohol, and domestic violence. She demonstrated little awareness of how her lifestyle impacted her children, and she did not acknowledge her responsibility for failing to protect them.

The social worker's report recommended reunification services to the parents, including requests that mother complete a psychological evaluation and address her mental health needs. The report warned the parents of their need to participate in the recommended services and to make progress in solving the problems that led to the dependency with a limit of one year to reunify with Phillip.

At the jurisdiction/disposition hearing on April 16, 2004, the juvenile court adopted the recommendations of the Department, removed the children from the custody of the parents, offered family reunification services to mother and Phillip N., Sr., and ordered mother to submit to a psychological evaluation. The six-month review hearing was set for October 15, 2004.

On April 22, 2004, the Department filed the report of a Family Mental Health Assessment prepared by Monterey County Children's Health Services. The report described mother's own dysfunctional childhood, and noted her defensive, hesitant and evasive nature. The children at issue here were apparently exposed to parental drug use and domestic violence between mother and the men in her life. However, the children seemed to regard mother as a â€