In re Am.H.

Filed 2/18/09 In re Am.H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.

Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

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Appellant T.H. is the mother of two girls, Am. H. and An. H. T.H. contends the juvenile court erred in combining her 12-month review hearing with the fathers dispositional hearing. T.H. further contends the juvenile court abused its discretion when it terminated her reunification services while continuing to provide reunification services to the father. We will affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

T.H. and W.H. had been the subject of numerous referrals to the Fresno County Department of Children and Family Services (the Department). Eight referrals alleged sexual abuse of one or both of the girls, usually naming their father, W.H, as the perpetrator. Another eight referrals alleged neglect by the mother, T.H. The Department had in its files a May 2002 police report stating that W.H. reported Am. had been molested by a 10-year-old boy T.H. had been babysitting. In September 2002, police received a report that W.H. had showered nude with Am. and had fondled her vagina. T.H. claimed the girls were allowed to watch sexually explicit material while at their fathers home. The Department found the referrals to be unfounded or evaluated out.

On March 22, 2007, Am. and An. were taken into protective custody after An. accused T.H.s boyfriend, Brad, of molesting her. The Welfare and Institutions Code section 300^[1]petition filed on March 26 alleged that both girls were at risk because T.H. had a substance abuse problem with marijuana and methamphetamine that affected her ability to provide adequate food and care for the children. It also was alleged that An. had been abused sexually by T.H.s live-in boyfriend and that both girls were at risk as a result of the sexual abuse.

The allegations came to light when T.H., who had sole physical and legal custody of the girls, called police officers after W.H. failed to return the girls after a visit. When officers contacted W.H., he told them An. said Brad had raped her, but W.H. acknowledged he did not contact the police about the allegation. When interviewed by officers, six-year-old An. told them that Brad had raped her and made her orally copulate him seven times. Am. said she knew nothing about her sister being molested and that An. had a big imagination and tends to lie a lot.

An. told the social worker that T.H. and Brad used a glass pipe to smoke drugs, Brad always was drunk, and T.H. sometimes drank. Am. told the social worker she wanted to live with her father because she did not like Brad, did not get enough to eat at her mothers house, and she wanted to be able to go to school. While living with T.H., Am. had attended only 78 of 115 school days and had 24 unexcused absences. Both Am. and An. indicated they did not get enough to eat at T.H.s, but did get enough food at W.H.s house.

T.H. did not believe the allegations, instead maintaining that W.H. had encouraged An. to lie in order to obtain custody. T.H. intended to marry Brad, notwithstanding the allegations. T.H. admitted to the social worker that she used marijuana and methamphetamine, but claimed she did so only when the girls were visiting their father.

At the conclusion of the contested jurisdictional hearing, the juvenile court found the petition to be true. Pending the dispositional hearing, T.H. had supervised visits with the girls. The Department reported that visits between T.H. and the girls went well, except that the girls often do not listen to their mother during the visits.

The Department recommended that the girls be placed with their father, who was a nonoffending, noncustodial parent. At the dispositional hearing, the juvenile court ordered placement with W.H. and ordered that family maintenance services be provided to W.H. and family reunification services be provided to T.H.

The Department reported that while in W.H.s home, the girls had been spanked, which violated a court order against corporal punishment; both W.H. and his wife smoked in the home; and the girls stated they were afraid to walk to school alone. W.H. and his wife initially failed to drug test, but W.H. eventually complied. Both W.H. and his wife were on methadone maintenance. W.H. was discharged from his first parenting class for nonattendance. Thereafter, he and his wife were placed on a waiting list for parenting classes.

T.H. had been diagnosed with bipolar disorder and received medication for the condition. She and Brad had separated after Brad physically attacked her. T.H. was enrolled in a domestic violence program and had moved in with her parents. Initially, T.H. did not participate in substance abuse testing or treatment. Eventually, she completed her assessment and began receiving out-patient services.

T.H. also was discharged from her first parenting class, but eventually completed her parenting course on October 7, 2007. It was noted in the report of T.H.s participation in the parenting class that (1) she failed to tell the instructor she had a substance abuse problem; (2) she apparently was maintaining a relationship with Brad, because she was visiting him in jail; (3) she had missed at least one class; and (4) her participation had been very minimal. The report concluded by noting that T.H.s ability to understand and utilize the parenting material presented is unknown due to her limited participation.

The children were detained again on January 28, 2008, when An. reported that W.H. had kissed her on the lips with a closed mouth when he dropped her off at school, complained of itching in her vaginal area, and stated she and W.H. played dress up and made love. W.H. was upset at the time the girls were detained and was involuntarily committed pursuant to section 5150. On January 30, 2008, the Department filed a section 342 subsequent petition based on An.s allegations.

The January 30 petition was withdrawn on February 4, 2008, and a new subsequent petition was filed that restated the sexual abuse allegations and asserted that W.H. had failed to obtain medical treatment for the girls, subjected the girls to emotional abuse by discussing the petitions in their presence, and had made suicidal statements in the presence of the girls. The girls therapists were of the opinion that W.H. was overwhelmed with caring for the girls and dealing with his involuntary hospitalization.

At the contested jurisdictional hearing on the subsequent petition, the Department dismissed the sexual abuse allegations against W.H. The Departments disposition recommendation was to offer reunification services to W.H., but to terminate reunification services to T.H.

The Department reported that (1) T.H. was participating in services, but her therapist indicated T.H. had made only slight progress; (2) T.H. doubted that An. had suffered any sexual abuse; and (3) T.H. again was using illegal substances, but denied having any substance abuse problem.

At the conclusion of the dispositional hearing, the juvenile court found that there was not a substantial probability the children would be able to be returned to T.H. by the 18-month date, September 22, 2008, because she had not made significant progress in resolving the problems that led to the removal of the children and she has not sufficiently demonstrated the capacity and ability to both complete the objectives of her treatment plan and to provide for the childrens safety, protection, physical and emotional well-being and special needs.

The juvenile court based its decision on its findings that (1) T.H. recently had tested positive for illegal substances; (2) T.H. was not forthcoming about her substance abuse; and (3) T.H.s testimony was inconsistent with prior statements and not credible. The juvenile court also found that T.H.s statements regarding her positive tests for opiates and marijuana were significantly lacking in credibility and led to the conclusion that T.H. had a continued substance abuse problem that has not been sufficiently addressed. The juvenile court found that T.H. had a significant amount of substance abuse treatment still to complete because of her inconsistent participation in treatment. Additionally, the juvenile court found that T.H. had made only slight progress in her mental health services and that T.H.s therapist opined that T.H. continues to have impaired judgment and insight and increase in depression.

The juvenile court terminated reunification services to T.H. and terminated family maintenance to W.H. Reunification services were ordered for W.H. The childrens placement in foster care was continued.

DISCUSSION

T.H. raises two issues on appeal: (1) the juvenile court erred in combining her 12-month review hearing with W.H.s dispositional hearing, and (2) the juvenile court abused its discretion in terminating reunification services to her while at the same time offering reunification services to W.H.

I. Error from Combined Hearing

T.H. maintains that it was error and inconsistent to apply 12-month review hearing standards to her, while at the same hearing applying disposition standards to W.H. In support of her contention that this was error, she cites In re Joshua G. (2005) 129 Cal.App.4th 189 (Joshua G.).

The appellate court in Joshua G. concludedthat the juvenile court had erred when it held one jurisdictional hearing as to the mother and another jurisdictional hearing two weeks later as to the father. (Joshua G., supra, 129 Cal.App.4th at p. 202.) The juvenile court compounded the problem when it held a 12-month review hearing for the father and an 18-month review hearing for the mother, with the appellate court noting that different hearings for each parent should not have been scheduled. (Id.at p. 203.) The reason, as held by the appellate court, is that a juvenile court assumes jurisdiction over children whenever the actions of either parent bring the children within the provisions of section 300 and that relevant dates are calculated by the assumption of jurisdiction over the children and the childrens placement in foster care. Therefore, there could not be different timelines for each parent. (Joshua G., at pp. 202, 203.) Despite the numerous errors, the appellate court stated that none of the errors warranted reversal. (Id.at p. 203.)

Assuming T.H. is correct and the juvenile court erred procedurally in this regard, we conclude that T.H. cannot raise this issue on appeal for two reasons. First, no objection was raised in the juvenile court. T.H. was present with counsel during this hearing and raised no objection, even when the juvenile court went to great lengths to clarify what it believed the timeline was as to W.H. and the status of the proceeding as to him. A party who does not object at the trial court level forfeits the right to claim error on appeal, and T.H. failed to object. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150-1157 (Meranda P.).)

Second, we are not convinced that T.H. has standing to challenge this point. Generally, parents can appeal judgments or orders in juvenile dependency matters. [Citation.] However, a parent must also establish [he or] she is a party aggrieved to obtain a review of a ruling on the merits. [Citation.] Therefore, a parent cannot raise issues on appeal from a dependency matter that do not affect [his or] her own rights. [Citation.] Standing to appeal is jurisdictional. [Citation.] (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the courts decision. [Citation.] The injury must be immediate and substantial, and not nominal or remote. [Citation.] (In re L.Y.L. (2002) 101 Cal.App.4th 942, 948.)

Here, T.H.s rights were affected by the decision of the juvenile court to deny further reunification services to her. T.H.s rights were not adversely affected by the juvenile courts decision to order reunification services be provided to W.H. The decision to deny further reunification services to T.H. was made independently of the decision to provide reunification services to W.H. T.H. can, and has, raised as an issue on appeal that the juvenile court abused its discretion in terminating her reunification services.

In conclusion, T.H. forfeited this issue for purposes of appeal. (Meranda P., supra, 56 Cal.App.4th at pp. 1150-1157.) Alternatively, T.H. has failed to demonstrate any error affected her own interests. (In re Crystal J. (2001) 92 Cal.App.4th 186, 189-190, 192.)

II. Denial of Further Reunification Services to T.H.

We summarily dispose of T.H.s claim that the juvenile court abused its discretion merely by denying reunification services to her while at the same time offering reunification services to W.H. A juvenile court has discretion to terminate reunification services to one parent while offering or continuing reunification services to another. (In re Jesse W. (2007) 157 Cal.App.4th 49, 64-65; In re Alanna A. (2005) 135 Cal.App.4th 555, 566.)

We review the juvenile courts order terminating reunification services to T.H. to determine if it was supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) Substantial evidence is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.)

At the 12-month review hearing the juvenile court is required to return the children to a parent unless it finds, by a preponderance of the evidence that the return of the child to his or her parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ( 366.21, subd. (f).) In this case, the juvenile court found that returning the children to T.H. would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the children.

The juvenile court also found that it was not likely the children could be returned to T.H.s custody by the 18-month review date because T.H. had made too little progress in the most critical areas of this case; those being substance abuse, mental health treatment, and the ability to believe and protect her children for the Court to make the requisite findings for continuation of reunification services at this time. Consequently, the juvenile court terminated T.H.s reunification services.

At the time of the review hearing, and after 12 months of services, T.H. had not completed her substance abuse treatment, had relapsed, and again was using illegal substances. She had been discharged from some programs for lack of attendance and her participation in other programs was not in accordance with her plan. T.H.s therapist evaluated her progress as slight and reported that T.H. continued to portray herself as a victim and had impaired judgment and insight. T.H.s depression symptoms also had increased. In addition, T.H. had complained to social workers that she had too many things to do, such as caring for her mother, to comply fully with her plan.

As set forth above, the juvenile court had ample evidence to support its determination that the children should not be returned to T.H. and that reunification services should be terminated. After 12 full months of services, T.H. had failed to address and resolve the issues that led to the filing of the dependency petition. Furthermore, all indications were that a return of custody to T.H. would not be accomplished with another six months of services.

We disagree with T.H.s contention that continued reunification services to her would be in the best interests of the children. T.H.s failure to comply substantially with her plan and her comments to social workers indicate that she places her desires and the

interests of the adults in her life above the need to comply with her case plan and reunify with her children. As one court has aptly stated, Children should not be required to wait until their parents grow up. (In re RikkiD.(1991) 227 Cal.App.3d 1624, 1632.)

DISPOSITION

The order is affirmed.

_____________________

CORNELL, Acting P.J.

WE CONCUR:

_____________________

GOMES, J.

_____________________

HILL, J.

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