Ashley C. v. Super.
Filed 3/25/13 Ashley C. v. Super. Ct. CA4/3
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
ASHLEY C.,
Petitioner,
v.
THE SUPERIOR COURT
OF ORANGE COUNTY,
Respondent;
ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,
Real Parties
in Interest.
G047931
(Super. Ct.
No. DP-023119)
O P I N I O N
Original proceedings;
petition for a writ of mandate/prohibition to challenge an order of the
Superior Court of
County, Richard Y. Lee, Judge.
Petition denied.
Juvenile Defenders and
Christine Marcos for Petitioner.
No appearance for
Respondent.
Nicholas S. Chrisos, County
Counsel, Karen L. Christensen and
Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County
Social Services Agency.
* * *
M.L. was born in October
2012. Her mother, petitioner Ashley C.,
had taken methamphetamine the day before, so M.L. was born with methamphetamine
in her system. Two days after her birth,
M.L. was detained by the Orange County Social Services Agency, and by October
10 the agency had filed a petition to declare M.L. a dependent of the juvenile
court.
Coincidentally, October 10, 2012 was also the day
scheduled for the termination of Ashley’s parental rights in her two previous
children, O.P., then age 8, and S.L., then age 2, pursuant to section 366.26 of
the Welfare and Institutions Code.
name="_ftnref1" title="">[1] The juvenile court had already terminated
reunification services for Ashley vis-Ã -vis both kids the previous June. While termination apparently did not actually
occur on October 10, we may take judicial notice that Ashley’s parental rights
to at least S.L, and evidently to O.P. also, were subsequently terminated.
A
held the next day, October 11. The court
ordered Ashley receive no visitation until she cleared certain warrants,
apparently related to driving while intoxicated and driving with a suspended
license. Upon clearing the warrants,
however, she was to have monitored visitation with M.L., two times a week, for
two hours per visit.
On October 26, M.L. was
placed with the father’s cousin as caretaker.
By early November
Ashley’s warrants had not been resolved, i.e., she had no visitation. However, sometime between early November 2012
and January 2, 2013, the
warrants were sufficiently cleared that Ashley had begun visitation with M.L.
at the father’s mother’s house.
Ashley didn’t have
visitation for more than two months before she proved uncooperative with the
caretaker. On the first Saturday in
January 2013, Ashley became “belligerent†when the caretaker became ill and
couldn’t travel to the father’s mother’s house for visitation. Ashley demanded visitation be provided
despite the illness. When the caretaker
offered to allow the visit in her own home, Ashley refused, insisting the visit
occur at the father’s mother’s house as usual.
The same thing happened
the next day. The caretaker was still
ill and could not provide a visit at the usual place. She pointed out that only
visits, so simply dropping off the child at the father’s mother’s house was not
an option. Ashley countered by becoming
“argumentative and erratic.†Apparently
Ashley’s demeanor was so obnoxious that the caretaker then requested future
visitation occur in social workers’ offices in Orange County.
It is not surprising,
then, that at a dispositional hearing
held January 8, 2013, the court adopted a case plan proposed by social workers
which restricted Ashley to once-monthly monitored visits of two hours. Ashley did not attend that hearing,
and her attorney made no challenge to either the case plan or the ultimate
visitation order embodied in the case plan.
Also at the January 8
dispositional hearing, the court further found there was no need for any
reunification services at all, citing
section 361.5, subdivision (b)(10). That
statute provides no reunification services need be offered when reunification
services for siblings have been terminated because the parent has not made a
reasonable effort to treat the problem that led to the removal in the first
place.
of section 361.5, subdivision (b)(10) to her case, and in any event its
applicability is amply demonstrated by the fact her drug and alcohol problems
remained unresolved by the time of the birth of M.L. in October 2012.
Rather, Ashley has
brought this petition for a writ of mandate challenging the effective reduction
of visitation embodied in the order of January 8, 2013 from two hours two times
a week to two hours once a month. Her
argument is that there was some error (abuse of discretion, really) because
there was no showing that her visits were detrimental to M.L.
Her argument fails. First, Ashley waived the visitation issue by
not contesting it at all at the January 8, 2013 hearing, and she presents no
legal argument that might be a ground for this court to exercise its discretion
to excuse the waiver. Indeed, to so
exercise our discretion would jeopardize M.L.’s need for permanence and
stability at this stage of the proceedings.
(See In re S.B. (2004) 32
Cal.4th 1287, 1293 [“But the appellate court’s discretion to excuse forfeiture
should be exercised rarely and only in cases presenting an important legal
issue. . . . Although an appellate
court’s discretion to consider forfeited claims extends to dependency cases . .
. , the discretion must be exercised with special care in such matters. . .
. Because these proceedings involve the
well-being of children, considerations such as permanency and stability are of
paramount importance.â€].)
And second, even if we
were to reach the merits, the record easily shows the juvenile court acted
reasonably in reducing Ashley’s visitation time. There was
a showing visitation would be detrimental to M.L. Ashley’s belligerence and lack of cooperation
in the first week of January revealed the potential for Ashley to scare off
M.L.’s caretaker and thereby undermine whatever permanence and stability had
already been established in M.L.’s young life.
The
petition is denied.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
THOMPSON, J.
name="_ftn1" title=""> [1] All statutory references in this
opinion are to that code.
name="_ftn2" title=""> [2] On January 22, 2013, S.L.’s father
filed a notice of appeal contesting the termination of his parental rights to
S.L. in an order made January 8, 2013 (appellate case number G047936). In the absence of any evidence to the contrary,
we presume Ashley’s rights to O.P., whose father is now deceased, were also
terminated.
