In re Sandra M.
Filed 7/29/13 In re Sandra M. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In re SANDRA M., a Person
Coming Under the Juvenile Court Law.
B246068
(Los Angeles
County
Super. Ct.
No. CK88079)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOSEPHINE D.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Anthony Trendacosta, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Valerie N.
Lankford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of
the County Counsel, John F. Krattli, County Counsel, James M. Owens, Assistant
County Counsel and Melinda A. Green, Deputy County Counsel for Plaintiff and
Respondent.
I. INTRODUCTION
The mother, Josephine
D., appeals from an October 24, 2012
parental rights termination order. The
mother argues she was prejudiced by the juvenile court’s decision to proceed
with the Welfare and Institutions Code section 366.26 hearing and terminate her
parental rights.
title="">[1] The mother contends a delay in the section
366.26 hearing was warranted because the department was in the process of
placing the child, Sandra M., with a relative.
Had the child been placed with a relative, the mother potentially could
have retained parental rights under
the section 366.26, subdivision (c)(1)(A) exception to adoption. We conclude the mother forfeited the delay
issue. We affirm the order terminating
the mother’s parental rights.
II. BACKGROUND
A. Section 300 Petition And Detention
On June 2, 2011, the
and Family Services (the department) filed a dependency petition on behalf
of the child pursuant to section 300, subdivisions (b) and (g). The petition alleged the mother had mental
and emotional problems and a history of substance abuse including alcohol,
marijuana and ecstasy, which placed the child at risk of harm. The father, Juan M., was allegedly
unable to provide for the child because of his incarceration.
The June 2, 2011 detention report indicated
the mother was 16 years old and a juvenile court dependent. The mother had been removed from the maternal
grandmother’s custody and resided in foster care. On May 27, 2011, the department investigated
a referral alleging the mother threw objects and suffered from extreme mood
swings and aggressive outbursts within the past several weeks. According to the detention report, “[The
mother] has previously locked herself in the room for seven hours with [the
child] and would not allow anyone in the room to help her.†The mother reportedly had been hospitalized
five times in 2009 for her mental health illness. The department recommended detention of the
child because of the mother’s destructive behavior and
the court document indicated the department was assessing a paternal
great-aunt, Norma M. and her husband, Juan H., for possible placement. The department reported in 2009, Juan H.
had two arrests for driving under the influence and two misdemeanor
convictions. On June 2, 2011, the child
was detained with temporary placement and custody vested with the
department.
B. Jurisdiction/Disposition Report And Hearing
The July 5, 2011 jurisdiction/disposition
report indicated the mother had numerous hospitalizations and was diagnosed
with mood, bipolar, and post-traumatic stress disorders. In addition, the mother had a history of
sexual abuse and exposure to domestic violence.
The mother admitted she used marijuana, alcohol and pills--ecstasy and
Triple C’s--before she was pregnant. The
mother denied using narcotics since the child’s birth. She agreed to participate in substance abuse
counseling and random drug testing.
The department reported the mother, since
being released from the hospital, had been visiting the child once weekly. The visits were monitored by an agency social
worker. The mother called the child
consistently while hospitalized. But the
mother did not call as consistently after her release from the hospital.
The department had assessed the paternal
great-aunt, Norma, and her husband, Juan H., for placement. But the child could not be placed with
Norma. This was because of Norma’s
husband’s prior misdemeanor convictions.
Juan H. had two separate 2009 convictions for driving with a
suspended license and driving under the influence, which included a refusal to
test allegation. The department needed
to obtain a criminal history waiver. The
department asked but had not received documents from Juan H. for
submission to the exemption unit.
At the July 7, 2011 jurisdiction hearing,
the mother pled no contest to the amended section 300 petition. The juvenile court accepted the no-contest
plea and sustained the following amended count b-1 against the mother: “[The mother] has mental and emotional problems,
which periodically render the mother unable to provide the child with regular
care and supervision, when she is not stable on her medication. Such mental and emotional condition on the
part of the mother places the child at risk of harm.†The juvenile court also sustained the
following counts b-3 and g-1 against the father, “[The father] is incarcerated
and unable to provide the child with the necessities of life, including food,
clothing, shelter, and medical care, placing the child at risk of harm.â€
The mother was ordered to comply with her
case plan which included: random drug
testing; parenting classes; transportation assistance; mental health referral;
individual counseling and mental health counseling; Wraparound services; and
trauma focus therapy. The mother also
was ordered to take all prescribed psychotropic medication. The mother was granted monitored visits, at
least three times or three hours per week, and daily telephone calls with the
child and foster mother.
C.
Interim And Status Review Reports and Six-Month Review Hearing
The November 18, 2011 interim review report
indicated the mother’s visits with the child were inconsistent. During one visit, the mother became upset
about the child’s diaper rash and yelled at the foster mother. Other relatives of the mother’s family
threatened to have the foster mother reported to unspecified authorities for
child abuse and neglect. The department
reported the diaper rash was mild and treated promptly by a doctor. Because of the incident, the foster mother
refused to monitor visits between the child and the mother or any other family
members. The department also reported
the mother was not currently enrolled in any counseling and was discovered
missing from her group home placement twice.
The January 5, 2012 status review report
indicated the mother was absent without leave from her various placements seven
times from June to November 2011. In
November 2011, the mother was placed with the maternal great-grandmother,
Blanca D. The mother was not
enrolled in any type of counseling because of her frequent placement
disruptions. The mother enrolled in
parenting skills, alcohol and drug, and anger management classes. But she did not attend classes between
October 27 and November 15, 2011. Since
then, she had been attending classes more consistently but still had several
absences. The mother had two negative
drug tests but her December 9, 2011 test was positive for marijuana.
The mother had visited inconsistently with
the child. In July 2011, the mother did
not see the child for a few weeks. The
mother had scabies and she was advised not to visit until she was cleared by
her doctors. The mother saw the child
once a week after being placed in a group home.
The mother left the group home on September 19, 2011. After that, the mother only visited the child
four times. Because of the continued
placement instability, the mother did not have another monitored visit with the
child until November 17, 2011. The department
reported that after being placed in the maternal great-grandmother’s home, the
mother now visited the child weekly.
The department recommended the juvenile
court terminate family reunification services because the parents had not fully
complied with the court orders. The
mother was not medication compliant nor currently participating in individual
counseling. The mother had enrolled in
parenting, anger management, and alcohol and drug education classes. But she had not attended classes for about
three weeks. In addition, the department
stated, “[T]he mother continues to show emotional instability as evidenced by
her constant replacements and [absent without official leave] incidents.â€
At the February 10, 2012 contested six-month
review hearing, the juvenile court terminated reunification services for the
parents. The juvenile court found the
mother was not in compliance with the case plan. The juvenile court set a section 366.26
hearing for June 8, 2012 and a review of permanent plan for August 10,
2012.
D. June 8, 2012 Section 366.26 Report And
Hearing
The June 8, 2012
section 366.26 report indicated the mother was in partial compliance with the
juvenile court orders. The mother was
not participating in individual counseling and with her Wraparound team. The mother was not taking any prescribed
psychotropic medication. This was
because a child psychologist found the mother was not in need of medication. The mother had enrolled in parenting and
substance abuse classes at Los Angeles Drug Treatment Center after she was
discharged from her prior program. The
mother had attended the program regularly but she recently failed to attend the
program for almost three weeks. The
mother visited the child weekly. The
visits were monitored and beginning on May 11, 2012, they were extended from
one to two hours.
The social worker reported: the child was a healthy and thriving 14-month
old; the child would very likely be adopted if parental rights were terminated;
adoptive parents had not yet been identified; and several people had expressed
interest in adopting the child. These
individuals included: the maternal
grandmother and step-grandfather; the maternal great-grandmother; paternal
great-aunt, Norma and her husband; the current caregiver, Ana E.; and the
current babysitter, Alejandra G.
At the June 8, 2012 hearing, the mother
requested the paternal great-aunt, Norma, be evaluated for placement of the
child. The juvenile court ordered the
department to investigate Norma as a placement option. The section 366.26 hearing was continued to
August 10, 2012, to allow the department to continue adoptive planning for the
child.
E. August 10, 2012 Status Review Report And
Hearing
The August 10, 2012 status review report indicated
the department was evaluating different prospective adoptive caretakers for the
child. The foster mother’s first
preference would be for the child to be placed with Norma. The foster mother had regular monitored
interactions with the child and the paternal relatives. The foster mother observed they were loving
and appropriate with the child. The
foster mother did not want to adopt the child.
This was because the foster mother felt the extreme harassment from the
mother and other maternal relatives would greatly increase if this option was
pursued.
The paternal great-aunt, Norma, and her
husband, Juan H., were interested in adopting Sandra. The child was not placed with Norma and her
husband but the paternal relatives had regular visits with the youngster. However, the paternal great-aunt indicated
her husband was on probation which would preclude him from getting a criminal
waiver.
The maternal great-grandmother, the mother’s
caregiver, also indicated an interest in adopting the child. However, the department did not want to
jeopardize the mother’s placement with the maternal great-grandmother. This was because the maternal
great-grandmother was doing an excellent job of providing stability for the
mother. The department ruled out the
maternal grandmother as an adoptive caregiver.
The maternal grandmother was the subject of a sustained petition
regarding the mother. The sustained
petition also involved the mother’s siblings.
On August 9, 2012, the department filed a
last minute information for the court document to clarify the criminal waiver
process. The department stated it was
possible for Norma’s husband to obtain a criminal waiver if he was on
unsupervised probation and it had been over a year since his conviction. Until Norma’s husband’s live scan results
were received and assessed, it was unclear whether he was eligible for a waiver
exemption.
At the August 10, 2012 hearing, the juvenile
court commented the child was “eminently adoptable†and had been with the
foster mother “pretty much†since birth.
The juvenile court stated: “The
Legislature, in its infinite wisdom, has determined that we don’t need a
preadoptive home or approved home to terminate parental rights of a child who’s
otherwise adoptable. And it seems to the
court, and I expressed this to counsel, the sooner that we resolve these issues
with respect to moving forward with the adoption, be that with the current
caretaker or any relative who’s come forward indicating their interest, is in
the child’s best interest because permanence at this point is paramount. And the sooner that we do that, that we get
to that point, the best it’s going to be for the child. [¶] So
even though, generally speaking, I don’t usually go forward with 366.26
hearings without an approved adoptive home, that is usually against the law and
the code. And in this case I do find
it’s in the child’s best interest to move as expeditiously as possible to the
most appropriate permanent plan for the child.â€
The juvenile court set the matter for a contested section 366.26 hearing
on October 24, 2012. The mother did not
object or ask for a continuance of the October 24, 2012 section 366.26 hearing
date.
F. October 24, 2012 Section 366.26 Report And
Hearing
The October 24, 2012 interim review report
provided the juvenile court with updated information on the individuals
interested in adopting the child. The
department reported the paternal great-aunt, Norma, and her husband,
Juan H., continued to be interested in adopting the child. The department had gathered all necessary
information for the criminal waiver for Juan H. except for the police
report and court records of a 1987 incident.
Once the department social worker submitted the criminal waiver request,
and if one was approved, an assessment of their home would be conducted.
The
maternal great-grandmother was interested in adopting the child. But the October 24, 2012 report explained why
department staff opposed placement of the child with the maternal
great-grandmother: “[The] maternal
great-grandmother . . . asked [children’s social
worker Maria] Gonzalez why she or other maternal family members couldn’t be
considered for adopting [the child].
[Ms.] Gonzalez explained to [the maternal great-grandmother] that
the reason the [d]epartment did not want to place [the child] with her was
because it would displace [the mother] and . . . [the
department] would risk [the mother] becoming extremely unstable again.†In Ms. Gonzalez’s opinion, the mother
had remained safe and stable while living with the maternal
great-grandmother. Under this proposed
scenario, the mother would move out because the child would be placed with the
maternal great-grandmother. In
Ms. Gonzalez’s view, this would endanger the mother. The maternal great-grandmother indicated the
mother would move out upon reaching the age of 18. Then, according to the maternal
great-grandmother, the child could move in.
Ms. Gonzalez stated the department would reconsider the question of
placement or adoption of the child again once the mother moved out. The maternal great-grandmother identified the
maternal great-uncle Juan H. and great-aunt Leslie Y. as prospective
adoptive parents. The couple was
interested in adopting the child but they could not be live scanned because
they only had consulate identification from Guatemala.
The foster
mother claimed to love and was bonded with the child. But the foster mother did not want to adopt
the child. This was because the foster
mother did not want problems with the mother.
The foster mother was concerned about her safety and that of the
family. In the past, the mother had
threatened the foster mother. On one
occasion, the mother spoke to the foster mother. The mother claimed to know where the foster
mother lives. The mother said the foster
mother owned a black car. The foster
mother in fact owns a black car and this concerned her.
The department reported the mother continued
to have weekly monitored visits with the child.
Most visits went well but there were some incidents. During one visit, the mother yelled and
cursed at the maternal grandmother in front of the child and others at a fast
food restaurant. The mother was on her
cell phone during most of the visit. As
a result, the maternal grandmother hid the mother’s phone. The mother accused the employees of stealing
her cell phone, so the maternal grandmother returned it to the mother. The mother began yelling and cursing at the
maternal grandmother in front of everyone.
During another visit, the foster mother observed the mother appeared to
be under the influence of an unknown substance.
At the October 24, 2012 section 366.26
hearing, the juvenile court stated its intention to proceed even though there
was not yet an adoptive home for the child.
The mother objected to termination of parental rights, arguing the
parent-child beneficial relationship exception under section 366.26,
subdivision (c)(1)(B)(i) was applicable.
The mother contended she consistently visited and acted in a parental
role during visitation. The child’s
counsel and the department argued the juvenile court should terminate parental
rights. The child’s counsel argued the
mother’s weekly monitored visits were not indicative of a parental role and no
exceptions to adoption had been met by the parents. No continuance motion was made.
The juvenile court found the department had
met its burden of proving by clear and convincing evidence that the child was
generally and specifically adoptable. The
court found the mother had not met her burden of establishing an exception
under section 366.26, subdivision (c)(1)(B)(i).
The juvenile court found the mother had regularly visited the child but
there was nothing in the record indicating a parent-child relationship
existed. The juvenile court found it
would be detrimental for the child to be returned to the mother and terminated
parental rights. The juvenile court
ordered the department to continue to assess any and all interested parties,
including any and all relatives, as prospective adoptive parents.
III. DISCUSSION
At a section 366.26 hearing, the juvenile
court selects and implements a permanent plan for the dependent child. (In re
Celine R. (2003) 31 Cal.4th 45, 52-53; In
re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Our Supreme Court has summarized the juvenile court’s options at section
366.26 hearing: “In order of preference
the choices are: (1) terminate parental
rights and order that the child be placed for adoption (the choice the court
made here); (2) identify adoption as the permanent placement goal and require
efforts to locate an appropriate adoptive family; (3) appoint a legal guardian;
or (4) order long-term foster care. (§
366.26, subd. (b).) Whenever the court
finds ‘that it is likely the child will be adopted, the court shall terminate
parental rights and order the child placed for adoption.’ (§ 366.26, subd. (c)(1).)†(In re
Celine R., supra, 31 Cal.4th at p. 53; see In re Hector A. (2005) 125 Cal.App.4th 783, 790-791.) One exception to the preference for adoption
is set forth in section 366.26, subdivision (c)(1)(A) which permits under
specified circumstances for placement with a relative. (See Samantha
T. v. Superior Court (2011) 197 Cal.App.4th 94, 113;
841, 854-855.)
On appeal, the mother does not challenge the
juvenile court’s adoptability finding.
However, the mother argues it was premature for the juvenile court to
terminate her parental rights. She
contends a delay of the section 366.26 hearing would have allowed the
department to place the child with either the paternal great-aunt or the
maternal great-grandmother. The mother
reasons once the child is placed with either the paternal great-aunt or
maternal great-grandmother, that relative could decide to pursue legal
guardianship rather than adoption. The
mother then would have been able to preserve her parental rights by asserting
the relative caregiver exception existed under section 366.26, subdivision
(c)(1)(A).
This issue has been forfeited. The mother did not object or ask for a
continuance when the juvenile court set the contested section 366.26 hearing at
the August 10, 2012 hearing. In
addition, the mother did not object or seek a continuance at the section 366.26
hearing on October 24, 2012. Generally,
an appellate court will not consider a challenge to a ruling if an objection is
not made in the juvenile court. (
In re A.E. (2008) 168 Cal.App.4th 1,
5.) Here the mother’s arguments are
premised on the unsupported assumption a delay would have resulted in a finding
the section 366.26, subdivision (c)(1)(A) exception applied. As no effort was made to delay the section
366.26 hearing, the issue raised on appeal has been forfeited.
IV. DISPOSITION
The October 24, 2012 order terminating the
parental rights is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
MOSK, J.
KRIEGLER,
J.
and Institutions Code unless otherwise indicated.
