In re Jasmin M.

Filed 8/21/06 In re Jasmin M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Steven Berman, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Deborah Hale, Deputy County Counsel for Respondent.

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In this dependency[1] case, L.J. appeals from an order establishing legal guardianship as the permanent plan for her daughter Jasmin. We affirm.

Facts

The section 300 petition was filed on March 7, 2003, a few days after appellant was arrested for a probation violation and told police that she had no one to look after Jasmin, then nine years old, and her half-sister Briana, who was two.

Jasmin and Briana were placed in foster care with Teresa R., where Briana remained until she was placed with her father, and where Jasmin remained until January 2005, when she was placed with the cousins who eventually became her legal guardians. Jasmin did well in the placement, getting good grades in school and participating in dance and other activities.

Appellant was only incarcerated for a few days. By the April 17 hearing, she had twice visited the children, called them often, and enrolled in parenting classes. DCFS was recommending that the children be released to her as soon as she obtained suitable housing – she was living with her father, and everyone involved agreed that the home was not suitable for the children. At the hearing, appellant submitted on the petition. The court ordered parenting, individual counseling, and unmonitored visits. On appellant's representation that she suffered from depression, the court ordered her to sign releases so that social workers could obtain her medical records.

However, in the following months, appellant did not make progress in her case plan. In May, June, and July, DCFS reported that she did not return the social worker's phone calls, had not found housing despite the fact that her probation officer had offered help, and was often late to visits. On one visit, she insisted on driving the children, although the court had ordered that she could not drive them until she had a valid license and proof of insurance. In another incident, she failed to return the children after a visit. She had not completed parenting classes.

Moreover, DCFS began evaluating Briana's father as a placement for her, and learned of an April 2002 incident in which appellant attacked him and destroyed some of his property in the children's presence. (Jasmin confirmed some of the details.) He, and two former neighbors or roommates, reported that appellant had neglected Briana.

In July, the visits order was changed to monitored visits. In August, DCFS filed a section 342 petition with allegations about the incident of domestic violence, the neglect of Briana, and an allegation that appellant had a history of psychological problems, including depression, which had led her to neglect her children. Also in August, Briana was placed with her father. (The placement was successful, and dependency jurisdiction over her was terminated a year later.)

During this period, Jasmin told social workers that she wanted to live with her mother.

The section 342 petition was sustained in September. Appellant was again ordered into parenting classes and individual counseling, and also ordered to attend domestic violence counseling and to comply with any prescribed mental health treatment. Jasmin told social workers that she wanted to visit her mother, but was not sure that she wanted to live with her, but at the hearing, Jasmin's counsel represented that Jasmin did not want visits and that appellant was calling the foster home "at all hours of the day and night." The court ordered that visits were to be in a therapeutic setting and issued a restraining order restraining appellant's contact with the foster parents.

By October, appellant had completed her parenting program, but not her other programs. In both October and November, the social worker reported that she was difficult to contact and belligerent when she was contacted. She refused the social worker's assistance with programs and housing. She had not had visits because she did not want to comply with the requirement for monitored visits. Jasmin now said that she didn't really want to go home to her mother.

But the next report, in May 2004, is much better. Appellant had given the social worker information about her therapist, and the social worker confirmed that appellant began therapy in July of 2003, and began attending consistently in April, 2004. Appellant also said that she was clearing up the credit problem that prevented her from getting housing. She visited her daughters once a month. DCFS recommended unmonitored visits, and the court made that order.

Once again, though, things quickly went bad. In June, after Briana's father failed to bring her to the drop-off point (a restraining order prevented appellant from going to his house) for a visit and cancelled a visit because Briana had measles, appellant called police and accused him of abuse, then, several days later, threatened to kill him and his girlfriend. DCFS made an ex parte request for an order for monitored visits, and after a contested hearing in which there was some evidence that medications had been prescribed for appellant by a psychiatrist, the court ordered monitored visits until appellant had a psychiatric evaluation with a Dr. Leonard.

In September, DCFS reported that appellant was not willing to have monitored visits or to talk to the social worker, and thus had had no visits since April, except in court. By this time, DCFS had identified Jasmin's cousins as prospective adoptive parents.

Dr. Leonard reported in October. In response to the two questions posed to him, he said that he did not have enough evidence to recommend medication for appellant, and that he recommended a cautious approach toward unmonitored visits. At the section 366.22 hearing that month, appellant represented that she had a place to live and had been in counseling since July. DCFS represented that appellant's medical records indicated that medication had been prescribed for her. The court terminated family reunification services.

Jasmin went to live with her cousins in January 2005.

The case was then delayed by difficulties with notice to Jasmin's father. The next report was in April 2005. Jasmin was doing well with her cousins, who wanted to adopt her. She seemed more open and happy. She had had visits with appellant, but the visits were terminated because appellant got into arguments with the prospective adoptive mother, refused to leave the home, and told Jasmin that her prospective adoptive parent didn't really love her. The visits upset Jasmin, and the parents refused to have appellant in their home. Appellant would not agree to visits at DCFS offices and would not speak to the social worker to arrange other visits.

In April, visits were ordered to be in a therapeutic setting.

For an August 24, 2005 hearing, DCFS reported that Jasmin was in therapy and had been seen twice. She had also had one conjoint session with appellant. Jasmin, now 12 years old, told DCFS that she did not want to be adopted and hoped she could live with her mother. She made a similar statement to her therapist. Her cousins, who had been interested in adoption, were now interested in legal guardianship. DCFS made that recommendation. The DCFS report also included the information that appellant had not returned Briana to her father after a visit.

The section 366.26 hearing was held on November 16, 2005. DCFS reported that Jasmin was happy with her cousins and was doing well in school. On the legal guardianship, DCFS reported that Jasmin's cousins had ensured that she had visits with her mother and grandmother and would continue to allow Jasmin to maintain her family ties.

Appellant submitted evidence that she had been in domestic violence, anger management, and drug/alcohol treatment since October, 2004. Jasmin's therapist reported that appellant and Jasmin had had five additional conjoint sessions, that Jasmin said that she wanted to be returned to her mother, and that she was "well bonded" to her mother. Psychotherapy focused on their communication skills, and their communication skills were improving. The therapist also reported that Jasmin was adjusting well to her current placement and to her separation from her mother.

The court ordered a permanent plan of legal guardianship, issued letters of guardianship, retained jurisdiction, and ordered monitored visits for appellant in a therapeutic setting.

Discussion

Appellant's contention is that no substantial evidence (In re Naomi P. (2005) 132 Cal.App.4th 808, 824) supported a finding that legal guardianship was in Jasmin's best interest, and that the court should have chosen long-term foster care. She points out the under the dependency law, "Legal guardianship shall be considered before long-term foster care, if it is in the best interests of the child . . ." (§ 366.26, subd. (c)(4)(A), emphasis added), and contends that additional contact with her was in Jasmin's best interest, and that foster care would better advance that goal. She argues that a guardian has the ability to unnecessarily restrict contact between child and parent, and foster care, unlike guardianship, would mean that the case would be reviewed every six months, with notice to the parents, who would have a right to participate, and with a return home one of the options to be considered. (§366.3, subd. (d), (e)(10), and (g).)

Factually, appellant argues that she and Jasmin had a strong bond, citing the evidence that Jasmin often said that wanted to live with her mother, and her own repeated statements that she wanted Jasmin returned to her. She argues that she made significant progress in her court-ordered programs, completed parent education, addressed significant issues in individual counseling, actively participated in individual and group counseling on domestic violence and anger management, and consistently participated in conjoint counseling with Jasmin, with positive results.

Appellant also argues that under the circumstances of this case, where the guardians were relatives and were committed to Jasmin's long term care, long-term foster care would achieve the legislative goal of preserving Jasmin's family relationships, while providing her with the same permanency and stability a guardianship provides.

We see substantial evidence for the legal guardianship order. Appellant essentially argues that the court should have chosen to advance the goal of reunification, but the reunification period in this case had long passed, so that the court's goal had to be stability for Jasmin. "The dependency scheme is informed by a policy that respects the child's interest in belonging to a family unit and protects his or her right to 'a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) Consonant with this policy, long-term foster care is discouraged as a permanent placement solution for dependent children." (In re John F. (1994) 27 Cal.App.4th 1365, 1376; § 396.)

Nor does this record suggest that this is the unusual case where long-term foster care was preferable. Appellant was slow to address the problems which led to this dependency; her lack of housing (the original petition), involvement in domestic violence, and psychological problems (the section 342 petition). Indeed, for long periods, she did not address them at all. Her visits with Jasmin, and thus her connection to Jasmin, were very inconsistent. Jasmin's views about living with her mother naturally varied. Appellant's progress, and her relationship with Jasmin, were much better in the last period of dependency, after about August, 2005. That is all to the good, but it does not mean that the trial court lacked substantial evidence for its decision. The trial court did not believe that Jasmin would benefit by the closer supervision (or possibility of reunification) long-term foster care would provide, and under these facts, we cannot fault that decision.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P.J.

MOSK, J.

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[1] All statutory references are to the Welfare and Institutions Code.