L.M. v. Super. Ct.

Filed 12/16/08 L.M. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Charlotte Wittig, Commissioner.

L.M., in pro. per., for Petitioner.

No appearance for Respondent.

Kathleen Bales-Lange, County Counsel, and Channone M. Smith-Sheller, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her daughter D. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In May 2006, petitioners two daughters R. and D., then 11 and 8 years old, respectively, and 10-year-old son T., were taken into custody by the Tulare County Health and Human Services Agency (agency) because petitioner and her boyfriend physically abused them. The juvenile court exercised its dependency jurisdiction and, in June 2006, ordered petitioner as well as D. and T.s fathers to participate in a plan of reunification.

The children were initially placed in the same foster home but over time, they were separated. In particular, R. and B. had to be separated because R. was physically and emotionally abusive to D.

After a year of reunification efforts, petitioner had substantially complied with her case plan objectives but still did not have stable housing for the children. In addition, her relationship with the children was turbulent and she was verbally abusive to T. Consequently, at the 12-month review hearing in June 2007, the juvenile court terminated petitioners reunification services and set a section 366.26 hearing.

In early February 2008, the juvenile court terminated petitioners parental rights as to T. and ordered adoption as the permanent plan. The agencys report prepared for the hearing stated that R. was having a hard time dealing with the fact that she would not be returning to petitioners custody. She acted out by taking pepper spray to school and spraying it into a classroom of students. She also lashed out verbally at her foster mother. D., on the other hand, was described as a nice young lady, who was not having any behavioral problems at school or in her placement. The court continued the section 366.26 hearing as to R. and D. to evaluate their relationship.

After the February hearing, it was discovered that R. pulled a knife on D. and threatened to kill her. When confronted, R. admitted to receiving the knife while at a visit with petitioner. R. also suggested the social worker should be shot when she learned the social worker was not recommending unsupervised visitation.

In March 2008, petitioner filed a petition pursuant to section 388 (388 petition), asking the juvenile court to reinstate reunification services and transition R. and D. into her care. She informed the court she regularly visited her daughters, was participating in family counseling and individual counseling, completed a 52-week Batterers Intervention Program, and 20 weeks of parenting education classes. In addition, she was employed 30 hours a week and was renting an apartment where R. and D. could have separate bedrooms. The department supported petitioners petition and recommended the court adopt a permanent plan of returning R. and D. to petitioners care rather than select a permanent plan of legal guardianship as it previously recommended.

In April 2008, the juvenile court conducted a combined section 388/366.26 hearing. The court granted the section 388 petition and ordered petitioner to participate in counseling with R. and D. The court also ordered weekly unsupervised visitation and set a status review hearing for June 2008.

In its June 2008 report, the agency recommended the court return R. to petitioners custody under family maintenance and continue efforts to transition D. into petitioners care. However, the agency reported D. was apprehensive about reunifying with petitioner and R. D. told the social worker that R. was mean to her and told her she was going to cut her throat. D. appeared scared by the idea of living with R. and stated she wanted to be adopted by a prior foster mother to whom she had a strong bond. At the same time, she said she wanted to return to petitioner.

In June 2008, the juvenile court placed R. in petitioners care under family maintenance and set a review hearing for September.

In July 2008, petitioner and the girls began unsupervised overnight visits. Not long after, D. reported to her therapist that petitioner and R. argued a lot and R. called her white trash and told her she was not her sister. The social worker met with D. who stated she did not want to continue therapy and visitation with petitioner and R. and did not want to speak to them on the telephone. The social worker told D. she did not have to visit petitioner, which appeared to relieve D. Subsequently, R. apologized to D. and D. told the social worker she wanted to reunify with her mother and sister. In its report for the September hearing, the agency recommended the court allow a 60-day trial visit in the home.

At the review hearing in September 2008, the juvenile court declined to adopt the agencys recommendation and found it would not be in D.s best interest to return her to petitioners custody. The court ordered the department to refer D. for individual therapy with a therapist other than the one providing family therapy and ordered D.s visitation with petitioner and R. to be supervised. The court also set a section 366.26 hearing to consider a goal of legal guardianship. This petition ensued.

DISCUSSION

Petitioner argues the juvenile court erred in deciding not to return D. to her custody. We disagree.

The juvenile court has broad discretion to determine what would best serve and protect a childs interests. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) On review, we will not reverse the juvenile courts determination absent a clear abuse of discretion. (Ibid.)

In this case, D. had suffered enough abuse first at the hands of her mother, then her sister. Further, it is readily apparent from the record that D.s ambivalence about returning to petitioners custody had less to do with a genuine desire to reunite with her than a fear of hurting petitioners feelings. Moreover, R. made serious threats to harm D. Given R.s behavior, there is no reason to believe she would not carry out her threats or that petitioner could protect D. if R. decided to follow through with them. Under the circumstances, we find no abuse in the juvenile courts decision not to return D. to petitioners custody and to set a hearing to implement a permanent plan of legal guardianship.

Petitioner also complains that she first learned by reading the appellate record of an incident alleged to have occurred in 2006 in which D. was sexually molested by a teenage boy at a youth club. She further complains about D.s foster mother allowing D. to be vaccinated for cervical cancer in August 2008. Neither of these incidents have any bearing on the juvenile courts findings and orders under review. Further, according to the record, they were properly addressed and resolved by the agency.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

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