In re Sergio R.





Filed 4/27/11 In re Sergio R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re SERGIO R. et al, Persons Coming Under the Juvenile Court Law.
TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.U., Defendant and Appellant.	F060890 (Super. Ct. Nos. JJV053269B, JJV053269C, JJV053269D) OPINION

THE COURT^*
APPEAL from orders of the Superior Court of Tulare County. Charlotte Wittig, Commissioner.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and Amy Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-

D.U. (mother) appeals from 2010 juvenile court orders regarding her sons, 11-year-old Sergio, 9-year-old Joel and 4-year-old Isaiah. Specifically, the juvenile court denied mother's request to regain custody of the three children and terminated parental rights to Sergio and Isaiah. (Welf. & Inst. Code, §§ 388 & 366.26.)^[1] Mother raises numerous arguments, including that the juvenile court erred by denying her section 388 request and rejecting her argument that termination would be detrimental. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

Original Dependency Proceeding
In 2001, when Sergio was a year old and Joel was an infant, mother lost legal custody of them and an older child because of her substance abuse issues. At Joel's birth, he, as well as mother, tested positive for methamphetamine. Sergio was then living with his father and paternal grandparents. Mother had left Sergio with his paternal grandparents since he was three months old. Sergio remained in the paternal grandparents' care during his original dependency and thereafter.
Mother entered Mothering Heights, a residential treatment program, where Joel could be placed with her. While in the program, mother also received anger and behavioral management services. She eventually completed the residential program in April 2002. In December 2002, while mother was still participating in an aftercare program, the juvenile court returned legal custody of the children to mother and dismissed the dependency proceeding.



Current Dependency Proceeding
In 2008, respondent Tulare County Health and Human Services Agency (agency) initiated the current dependency proceedings. By this point, Sergio was eight years old, Joel was six years old and mother had another son, two-year-old Isaiah.
Despite mother's earlier completion of residential drug treatment and participation in aftercare, she again had substance abuse issues. Also, in spite of the earlier anger and behavioral management services she received, mother physically abused her eldest child and inappropriately used corporal punishment. She also engaged in severe domestic violence with her longtime boyfriend while the children were in her care and custody.^[2]
In March 2008, the juvenile court removed the children from mother's custody.^[3] It granted custody of Sergio and Isaiah to their father provided he placed them with the paternal grandparents. It vested responsibility for Joel's placement and care with the agency. It placed Joel with a maternal relative. Eventually, the court had to remove Sergio and Isaiah from their father's custody. They remained placed with the paternal grandparents.
Reunification Period
Mother's case plan included a dual diagnosis evaluation to develop appropriate treatment plans to address both her mental health and substance abuse needs, as well as a domestic violence assessment, family therapy as directed by the children's therapist, and drug testing. In the beginning, mother was very resistant to services. She refused to participate, had false starts, and delayed substance abuse treatment. Mother also repeatedly delayed getting her court-ordered psychological evaluation. The psychological evaluation was eventually completed in September 2008.
By that time, however, mother was having criminal problems because she was participating in a Prop 36 treatment court. She had been ordered into intensive outpatient treatment.
When mother finally had her domestic violence assessment, it was recommended that she complete 26 domestic violence classes to be followed by a year-long child abuse intervention program. However, mother's substance abuse interfered with her ability to attend the domestic violence classes.
Although mother tested clean in September 2008, she had dirty tests for alcohol in November 2008 and January 2009. In February 2009, she tested positive for methamphetamine. She entered residential drug treatment again, this time apparently at the order of the criminal court. She eventually completed her residential treatment. Sergio and Visitation
In the meantime, Sergio had made it known that he was not interested in visits with mother and did not want to live with her. The social worker persuaded a reluctant Sergio to continue with the visits. Throughout his dependency, Sergio had been very anxious and afraid of being removed from the paternal grandmother's home. Sergio had been receiving therapy to deal with his anxiety since the summer of 2008.
Sergio explained to the social worker, in the summer of 2009, that he did not want to visit with mother because whenever he did, it made mother think he would go back to her. He was also afraid the social worker would misinterpret his intent. He did not want to return to mother.^[4]
Sergio's desires were discussed at a July 2009 meeting attended by social workers, service providers, mother, and other relatives from both sides of Sergio's family. The paternal grandmother was advised to encourage, but not push Sergio to visit mother. Mother asked the paternal grandmother to at least have Sergio in the car when she transported Isaiah for visits so that mother could see Sergio and say hello. This apparently became the pattern for some time.
Mother's Progress
As of September 2009 mother completed 17 of the 26 required domestic violence classes. By then, mother was rated â€