FELICIA v. Real Party in Interest. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Judge. Petition denied.

Felicia C., in pro. per., for Petitioner

No appearance for Respondent

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda S. White–Svec, Deputy County Counsel, for Real Party in Interest.

In her petition for an extraordinary writ, Felicia C. (Mother) challenges a January 7, 2011 order setting a permanent planning hearing for May 6, 2011, as to her children Giselle C. and Abel C. We deny the petition because the court correctly denied reunification services and Mother has not shown any reason to delay the permanent planning hearing.

BACKGROUND

Giselle is two and one-half years old.   Abel is one and one-half years old.

In November 2008 when Giselle was born, Mother had an open case with her other three children and agreed to include Giselle in the existing Voluntary Family Maintenance Safety plan (VFM) in an effort to maintain Giselle in the home.   Mother, however, did not comply with the VFM contract and court orders which prohibited drug use, required her to participate in an outpatient drug treatment program, submit to random drug testing, and to undergo a mental health assessment and follow-up.

On April 9, 2009, the Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code 1 section 300 petition as to Giselle and alleged under subdivisions (b) and (j) that Mother has a history of illicit drug abuse including the abuse of amphetamine and methamphetamine which renders her incapable of providing regular care for the child.   It further alleged that the child's siblings Mercedes V., age 8 years, Hailey V., age 6 years, and Mark C., age 4 years, are current dependents of the juvenile court due to Mother's substance abuse, and that Mother failed to participate regularly in a court-ordered substance abuse rehabilitation program and random drug testing.   Giselle was detained in the home of the paternal aunt.

On May 7, 2009, DCFS reported that Mother was pregnant and, although she continually expressed willingness to comply with her programs, she lacked follow-through and had not drug tested, nor complied with court orders.

On May 14, 2009, the juvenile court declined to offer reunification services to Mother as to siblings Mercedes V., Hailey V., and Mark C.

On May 29, 2009, the court made additional orders regarding Giselle.   It ordered that Mother participate in individual counseling to address her mental health issues, attend parent education classes, and granted her monitored visitation with Giselle.

Abel was born on October 14, 2009.   On October 29, 2009, the DCFS filed a section 300 petition as to Abel and alleged under subdivisions (b) and (j) that:  (1) Mother has a history of substance abuse including the abuse of amphetamine and methamphetamine, which renders Mother incapable of providing the child with regular care and supervision, and (2) remedial services have failed to resolve the family problems in that Mother has failed to comply with court orders requiring Mother to participate regularly in a substance abuse rehabilitation program and random drug testing.   The child's siblings Mercedes V., Hailey V., and Mark C. have received permanent services due to Mother's abuse of illicit drugs.   Both Abel and Giselle were placed in the home of the paternal grandmother.

A DCFS report of October, 2009, stated that Mother had not participated in any court-ordered programs, had not maintained consistent contact with DCFS, and had not consistently visited Giselle.   Mother had a minimal relationship with Giselle, and at times had not exercised her full visitation time.   The juvenile court ordered DCFS to provide Mother with referrals for substance abuse, random drug testing, parenting, and individual counseling.

In November 2009, DCFS reported that the two children were still living with the paternal grandmother.   Mother acknowledged that she had not participated in any court-ordered programs.

In December 2009, DCFS reported that Mother was participating in parenting classes, but because she had missed some classes she had not received a certificate of completion.   The report informed the court that Mother had a negative test on November 9, 2009, failed a November 20, 2009 drug test, and did not take any further drug tests to date.   Mother had not provided DCFS with any proof of enrollment in other court-ordered programs.   DCFS further reported that Mother's visits with both children were sporadic and uneventful.   Mother left early at times and averages 30–45 minutes per visit.

On December 18, 2009, at the jurisdiction hearing, the juvenile court declared Giselle and Abel dependent children of the court.   Pursuant to section 361.5(b)(10),² the juvenile court declined to order family reunification services to Mother.   The juvenile court further ordered Mother's parental rights terminated as to the other three siblings.

In June 2010, the DCFS reported that Mother's whereabouts were unknown.   She had missed all Friday visits for the month of May. DCFS subsequently discovered that on July 19, 2010, Mother was arrested for assault with a deadly weapon and second degree burglary.   On October 5, 2010, Mother was sentenced to a prison term of two years.

On December 18, 2010, the juvenile court, pursuant to section 361.5(b)(10), again declined to order family reunification services for Mother.

On January 7, 2011, the juvenile court acknowledged that Mother was never provided reunification services as to Giselle and Abel, and set a section 366.26 hearing for May 6, 2011.

On January 24, 2011, Mother filed a notice of intent to file a writ petition and on February 22, 2011, filed the petition, both in propria persona.   Mother's petition alleges, without any explanation, that the order setting the section 366.26 hearing should be vacated and that reunification services should be provided.   On February 22, 2011, the clerk of this Court informed the parties that the matter will be decided on the merits.   DCFS filed an answer to the petition for an extraordinary writ.

DISCUSSION

Noncompliance with

Rule 8.452 of the

Mother failed to comply with these rules.   Her petition does not include a memorandum of points and authorities, and she offers only the request that the order for the section 366.26 hearing be vacated and that she be provided reunification services as “support” for her petition.   She states neither grounds for the petition nor any factual basis for the petition.

Although we could dismiss the petition for its clear failure to comply with the appellate court rules, we decline to do so in light of the importance of the right at stake and the critical stage of these proceedings.

Reunification Services

In the instant case, substantial evidence supports the juvenile court's finding on January 7, 2011, that the children should not be returned to Mother's custody.   On December 18, 2009, the court determined that Mother should be denied reunification services with Giselle and Abel due to her failure to reunify with the children's half-siblings.   The record supports the court's finding that Mother had not made any progress to correct the problems that resulted in the loss of her other three children.   She failed to complete the parenting program, did not participate or enroll in any of the other ordered programs, failed or did not appear for drug tests, and neglected to take advantage of her right to visit with the two children.

Section 366.26 hearing

Section 366.22, subdivision (a), provides in pertinent part that if “the child is not returned to the parent ․ at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption ․ guardianship, or long term foster care is the most appropriate plan for the child․  However, if the court finds by clear and convincing evidence, based on the evidence already presented to it, ․ that there is a compelling reason ․ for determining that a hearing held under Section 366.26 is not in the best interest of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship, then the court may, only under those circumstances, order that the child remain in long-term foster care.” (§ 366.22, subd. (a).)

On January 7, 2011, the juvenile court found that it was in the best interests of Giselle and Abel to set a hearing to select a permanent plan of adoption, guardianship, or other planned permanent living arrangement.   Mother did not present any evidence at the hearing that it would not be in the children's best interest to schedule the section 366.26 hearing, and none can be found in the record.   The children are adoptable, as their paternal grandmother wished to adopt them and provide them with a permanent home.   As there were no compelling reasons for the juvenile court to find that the section 366.26 hearing was not in the children's best interests, the juvenile court was required to order the section 366.26 hearing.

DISPOSITION

The petition for an extraordinary writ is denied.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code..  FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

FN2. Section 361.5, subdivision (b)(10) provides:  “(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶] ․ [¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.”.  FN2. Section 361.5, subdivision (b)(10) provides:  “(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶] ․ [¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.”

CHANEY, J. JOHNSON, J.