Case Law Update: 30 April 2009

M.B. v. Superior Court (Unpub'd), No. F057020

At a section 366.26 hearing in August 2007, the juvenile court ordered then 12- year-old M. and 11-year-old A. into long-term foster care. In February 2009, at a permanency plan review hearing, the court set a section 366.26 hearing to consider a permanent plan of adoption after the children's foster parents expressed an interest in adopting them.

At the beginning of the review hearing, M.B. (mother), through her attorney, made an oral request for a continuance. Mother's attorney explained that petitioner had substantially changed her life and wanted to ask for reunification and visitation. She wanted to testify but did not believe she was physically able at that time. She testified she was having difficulty breathing, partly because of anxiety over permanently losing her children and partly because of a chest cold she had been suffering for three weeks and which was getting worse. She also testified she was being treated for cancer which was in remission. She believed she would be in a better position to testify if she were given a two-week continuance. The juvenile court denied the motion for a continuance and proceeded with the hearing. At the conclusion of the hearing, the juvenile court set a section 366.26 hearing.

Mother filed a petition for extraordinary writ seeking to vacate the court's order setting the 366.26 hearing, arguing the juvenile court erred in not granting her request for a continuance.

The appellate court held that "Once adoption became a viable permanent plan for the children, the court had no option but to set a section 366.26 hearing... Further, though petitioner may not have been feeling well, she failed to show she was too ill to testify and, in fact, did so without difficulty following the court's denial of her motion to continue. Consequently, she failed to show good cause and the court did not abuse its discretion" in denying the continuance.

Accordingly, the petition for extraordinary writ was denied.

Opinion: F057020.PDF, F057020.DOC

In re N.N. (Unpub'd), No. C059461

N.N. (then eight years old) was removed from his mother's custody on November 19, 2007, after an officer spoke to him while investigating a dispute between the minor's maternal grandmother and her landlord. The minor told the officer his family was homeless. The officer took the minor to several locations in an unsuccessful attempt to find his mother.

On November 21, 2007, the Sacramento County Department of Health and Human Services (DHHS) filed a petition alleging jurisdiction under 300(b) W&IC based on domestic violence and the mother's substance abuse problem. The mother admitted prior drug use but asserted she did not have a drug problem. She had two prior misdemeanor convictions and an extensive child welfare history. At the initial hearing on November 26, 2007, the court continued removal of the minor from the mother's custody.

Nicholas N. (father) expressed an interest in his son and said he wanted to do all he could for the boy. However, he had an extensive criminal record which included several violent felonies. Due to his incarceration, he had not seen the minor since the boy was about four years old. The social worker found a connection between the minor and appellant based on "knowledge of and a love for one another" but concluded "the child does not have a deep emotional investment in his father nor has he relied on his father for his care or welfare." The minor did not ask to visit appellant and did not show emotion where appellant was concerned. The social worker concluded the minor had not bonded with his father.

Father petitioned the court under 361.2 W&IC for custody of the minor and placement with appellant's wife. Although the juvenile court ordered the Department of Corrections and Rehabilitation to deliver appellant to the contested jurisdiction and disposition hearing on April 14, 2008, appellant declined to attend because he did not want the minor to see him in shackles and prison clothing. At that hearing, the court sustained the petition and ordered reunification services for the mother but denied services for Father based on his lengthy incarceration. The court also denied visitation for Father but ordered DHHS to assess him for visitation should he be released from prison before the case concludes.

Father appealed these orders, contending the juvenile court abused its discretion by not allowing him visitation with his young son while serving a 16-year prison term for robbery.

The appellate court explained that 361(f) W&IC states that "[t]he court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." The court further explained that "[s]ince appellant was denied reunification services, it was not necessary for the juvenile court to first establish detriment before denying visitation." Further, the court held, "[n]othing in the record establishes that visitation will benefit the minor. Although there was some connection between the two, the minor had not bonded with appellant and showed no emotional attachment to him."

Accordingly, the appellate court concluded that denial of visitation was not an abuse of the trial court's discretion, and denied the appeal.

Opinion: C059461.PDF, C059461.DOC

In re J.D. #1 (Unpub'd), No. F056615

In re J.D. #2 (Unpub'd), No. F056616

In December 2007, the Stanislaus County Superior Court adjudged J.D. and her four younger siblings dependent children and removed them from parental custody. The court previously determined J.D., in particular, came within its dependency jurisdiction under 300(b) and (c) W&IC, based on neglect caused by parents' history of developmental delays. Because of extreme behavioral challenges, J.D. was placed in a group home; her siblings were placed in both relative and foster homes.

Once the court removed the children from parental custody at the December 2007 dispositional hearing, it also ordered the parents to complete a psychological evaluation to determine if they were able to benefit from reunification services. It was agreed that, if they were unable to benefit from services, the court would order a second psychological evaluation. In the meantime, the court ordered: both parents to complete a parenting class and utilize services offered through the Regional Center; and appellant to complete an anger management class and a substance abuse assessment as well as submit to random drug testing. The court also ordered counseling for the children and set a six- month review hearing.

The psychiatrist who performed the psychological evaluations concluded that "the provision of services would not enable either parent to adequately care for and control the children within the statutory period of 12 months." As of mid 2008, the parents participated in and complied with the services offered them. There was also no question the parents loved their children. However, they did not demonstrate any insight into the parenting problems that contributed to their children's removal and there were serious concerns regarding each parent's inability to make progress in correcting those problems.

At a July 2008 status review hearing, the juvenile court found the agency provided reasonable services and, although the parents were "trying very hard," they made "almost minimal" progress. The court continued the children's out-of-home placement and reunification services. It also ordered the parents to participate in a second psychological evaluation as well as additional parent-child labs to see if the parents made any improvement. It concluded by setting a 12-month review hearing for November 2008. The parents completed the second psychological evaluation in August 2008 with a different evaluator, who reached the same conclusion as the first evaluator.

In September 2008, the agency filed a 388 petition recommending the court terminate the parents' reunification services based on the psychologists' conclusions that the parents could not benefit from further reunification services. The agency filed Dr. Carmichael's psychological evaluations, along with the section 388 petition. A contested hearing on the 388 petition was set for October 2008. Meanwhile, the agency filed its 12-month status review report, recommending the juvenile court terminate reunification services for the parents based on their poor progress and because there was not a substantial probability that the children would be returned to parental custody in what remained of the maximum 18-month period for reunification.

In November 2008, the juvenile court conducted a contested hearing on the agency's section 388 petition followed by the 12-month dependency status review. Following argument on the agency's section 388 petition, the juvenile court granted the petition. In so doing, the court explained it did not believe continuing services would increase the likelihood of reunification. Further, in the interest of permanency, the court concluded terminating reunification services would serve the children's best interests. Regarding the 12-month review phase of the hearing, no additional evidence or argument was offered. The juvenile court adopted the agency's recommended findings, terminated services for both parents. While it set a section 366.26 hearing for J.D.'s siblings, the court found such a hearing would not be in J.D.'s best interests because she was not adoptable and no one was interested in becoming her legal guardian.

Both parents appealed these orders. Father argued that contends the agency should have been held to a clear and convincing standard of proof for its modification petition since that is the evidentiary standard required to bypass reunification services in the first instance. Mother claimed the agency's section 388 petition was essentially untimely in that at the 12-month stage the court should no longer evaluate the parents' inability to benefit from services under 361.5(b)(2), subdivision (b)(2), a bypass ground available for denying reunification services at the outset.

With regard to father's claims, the appellate court held that the juvenile court properly terminated reunification services as part of its 12-month status review. Further, the court noted that 388 W&IC was amended, effective January 1, 2009, to address its use in terminating reunification services, and that the juvenile court's decision was proper under the amended provisions of 388(c) W&IC.

With regard to mother's claims, the appellate court explained that "the scope of our appellate authority on issues of fact begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible." The appellate court further held that "there was no evidence of any significant progress on appellant's part in resolving problems that led to J.D.'s removal from the home." Additionally, to the extent that Mother's argument rests upon the admissabilty of the report of the psychological evaluations, the appellate court held such claims were forfeited because Mother did not object to the admission of the reports in the trial court.

Accordingly, the juvenile court's orders were affirmed, and both appeals were denied.

Opinion: F056615.PDF, F056615.DOC (father) Opinion: F056616.PDF, F056616.DOC (mother)

J.A. v. Superior Court (Unpub'd), No. A124046

On February 23, 2007, the San Francisco County Department of Human Services filed a section 300 petition alleging that father's daughter K.A. (born May 2001) suffered physical abuse by father and step-mother, as well as sexual abuse by her mother's boyfriend while in mother's care. On February 28, 2007, the court ordered K.A. detained but granted father visitation.

The SSA's dispositional report noted that "K.A. entered foster care with multiple medical problems due to long term neglect by mother, 'presents with many behavioral concerns,' and has been referred for Fetal Alcohol assessment. It also notes K.A. had alleged sexual abuse by father. On this point, the report opined that K.A. is "confusing the historic sexual abuse [by Mother's boyfriend], and attributing it to father here in San Francisco' because what K.A. reported is 'word for word' what she previously told a school counselor had happened in Pennsylvania."

On May 16, 2007, at the conclusion of the disposition hearing, the court found by clear and convincing evidence that K.A. could not return home safely and declared her to be a dependent of the court. The court ordered that K.A. continue to reside in foster care and adopted the reunification requirements recommended by the Department.

The Department filed a twelve month status review report (12-month review) on April 25, 2008. Regarding father's situation, the 12-month review noted that "after a long period of excellent progress towards reunification, the situation took a dramatic and unfortunate turn." Father had been "complying well with services" and visitation had been steadily increasing. However, "despite the successful visits, [K.A.] continued to express reluctance to reunify," so it was decided to delay reunification until K.A. completed the current school year. In the meantime, father was arrested by San Francisco police on March 31, 2008, after allegedly stealing a bicycle. On April 2, the father was taken into the custody of the Immigration and Customs Enforcement office (ICE) on account of his undocumented immigration status. Father remained in ICE custody and was likely to be deported to Honduras.

The court held a twelve month review hearing on May 14, 2008. The court found that father's compliance with the case plan was substantial. The court adopted the Department's recommendation that six additional months of reunification services be provided to father and set the matter for an 18 month review in November, 2008. Meanwhile, on May 16, 2008, the foster parents filed a petition for de facto parent status. In their petition, the foster parents stated they love K.A. and want to adopt her if father could not assume custody. Foster parents stated they were concerned about K.A.'s emotional health and reported that she has "a lot of anxiety and fear" associated with visiting father. Foster parents stated that K.A.'s emotional turmoil in association with visitation manifested in nightmares, potty accidents, vomiting, and angry outbursts. On June 18, 2008, the court denied the foster parents' petition for de facto parent status.

The Department filed an 18-month status review report (18-month review) on October 21, 2008. Regarding father's progress, the 18-month review stated he was in ICE custody until August 2008, after which he was deported to Honduras. Father returned to San Francisco during the week of October 13, 2008. K.A. continued to express severe reluctance regarding visitation. On November 12, 2008, the court set a contested 18-month review hearing for November 26, 2008. The court also ordered three hours per week supervised visitation between father and K.A. In November 26, 2008, the court continued the 18-month review hearing to February 2, 2009 and ordered that supervised visitation be continued.

The Department filed a further addendum report on January 27, 2009. The addendum report stated that ICE officials detained father on December 3, 2008, after the mother called ICE to report father's undocumented status. Father was again deported back to Honduras. On February 2, 2009, the court conducted the 18-month review hearing. Father, having just returned from Honduras, was present but did not testify. The court ordered that reunification services be terminated and that a 366.26 hearing be set. Father filed a petition for extraordinary writ, alleging the reunification services provided to him were inadequate because he Department failed to institute family therapy upon assuming jurisdiction and failed to provide such therapy between April 2007 until November 2007.

The appellate court held that father waived the finding of reasonable services at the six-month review hearing by failure to object to it at that time, and that the problem was in fact that "due to father's extended absences, he was not able to fully participate in and benefit from the services offered to him", not that inadequate services were offered. Accordingly, the petition for extraordinary writs was denied on its merits.

Opinion: A124046.PDF, A124046.DOC

In re D.E. (Unpub'd), No. B209038

D.E. (born in September 2006) and his sisters, G.E. (born in January 1993) and N.E. (born in December 1994), came to the attention of the Department of Children and Family Services (DCFS) when a urine sample taken from mother the day she gave birth to D.E. tested positive for methamphetamine, amphetamine, and cocaine. A urine sample taken from D.E. two days after his birth tested positive for cocaine metabolites. When interviewed by DCFS, mother denied using any form of controlled substance and stated that she did not know why the toxicology screening yielded positive results. The children were detained, and the girls were placed with a maternal aunt, C.L., while D.E. was placed in foster care

Shortly before the six-month review hearing, mother and father took the girls from school. When maternal aunt C.L. contacted mother in search of the children, mother stated she and father had taken the children because "'no one is going to take them away.'" On April 12, 2007, the court issued protective custody warrants for G.E. and N.E. and arrest warrants for mother and father. The six-month hearing was ultimately held in July, 2007, and the court found mother and father had abducted two of the children, failed to keep in contact with DCFS, and failed to comply with the case plan. Family reunification services were terminated as to all three children. Because of the age of the girls and their unknown whereabouts, the court ordered long-term foster care as their permanent plan. A 366.26 hearing was scheduled for D.E.

Mother returned the children to C.L. (via an uncle) in Tijuana in February, 2008, and shortly thereafter returned to the United States. The section 366.26 hearing for D.E. was held on June 9, 2008. The court found by clear and convincing evidence that D.E. is adoptable and that it would be detrimental to return him to his parents. The court also found the beneficial relationship exception did not apply. Mother's and father's parental rights as to D.E. were terminated. D.E.'s custody was transferred to DCFS for adoptive planning and placement. Mother appealed, contending that the beneficial relationship exception of 366.26(b)(1)(C)(i) should have been found to apply.

The appellate court noted that "the evidence of D.E.'s relationship with his mother before and after her time in Mexico is not such that the exception would have applied but for the period of absence." Accordingly, the appellate court held that the juvenile court did not abuse its discretion in finding the beneficial relationship exception did not apply. The court's order was thus affirmed, and the appeal was denied.

Opinion: B209038.PDF, B209038.DOC

In re D.S. (Unpub'd), No. A122419

A dependency petition was filed on January 31, 2008, alleging Father placed D.S. (then ten years old) at risk by punching and kicking him and denying him food. The petition also alleged that D.S. was suffering, or was at risk of suffering, serious emotional damage. D.S. was detained on February 1, 2008, and the matter was set for a contested jurisdictional hearing on March 5, 2008. The Department began the process of evaluating Mother's home in Nevada and the court, with Father's support, ordered the evaluation continue with the aim of placing D.S. with his mother.

At the jurisdictional hearing on March 5, 2008, Father admitted one of the section 300(b) allegations contained in the petition, as amended, and the other allegations were dismissed. The court accepted the parties' stipulation to jurisdiction of the juvenile court based on Father's admission.

A disposition report prepared on or about March 27, 2008, stated that D.S. was living with Mother in Las Vegas. Under the heading "prior child welfare history," the report set forth six prior referrals regarding D.S., beginning on May 21, 2000, when D.S. was almost two years old. All of those which involved Mother were ultimately held unfounded. The agency recommended that Mother have sole physical custody of D.S., with the parents sharing legal custody and Father having reasonable supervised visits. The agency also recommended that the juvenile court vacate dependency and dismiss the petition. Subsequently, Mother informed the agency of her plan to move to Louisiana.

At a disposition hearing in June, 2008, the juvenile court found that D.S. "is simply not at risk in the mother's home." It found that D.S. was a disturbed child but that this fact did not justify continuing jurisdiction over the case. It found Mother had done everything she could and was impressed with her decision to seek help and a support system from family members by moving to Louisiana. The court granted Mother sole physical custody of D.S., granted the parents joint legal custody, and ordered that Father shall have reasonable supervised visits with D.S. in the city in which D.S. resides and that D.S. shall not be required to visit Father against his wishes. The court terminated jurisdiction over D.S. and dismissed the case, finding D.S. was no longer at risk in Mother's home and that there was no reason for the dependency to continue in the case. Father appealed, arguing that the juvenile court abused its discretion in terminating jurisdiction over D.S. because there was a need for ongoing supervision.

The appellate court held that substantial evidence supports the juvenile court's finding that there was no need for ongoing supervision. The court observed that "[a]t the time of the June 17, 2008, disposition hearing, D.S. had been living with Mother for approximately four months. The placement was safe and D.S. was receiving excellent care in Mother's home. Although D.S. suffered from behavioral problems, Mother was aware of these issues, was committed to caring for him, and had sought appropriate services for D.S., including counseling and an evaluation at a behavior center. When Mother lost her medical benefits as a result of losing her job, she immediately sought other means to ensure D.S. received the counseling he needed. Although Mother and her fiance had both recently lost their jobs, they had made the decision to move to Louisiana where they had a support system, and where they could afford to have Mother stay home to provide attention and support to D.S."

Accordingly, the appellate court affirmed the dispositional order and denied father's appeal.

Opinion: A122419.PDF, A122419.DOC

In re C.P. (Unpub'd), No. A122677

On January 11, 2008, the San Mateo County Human Services Agency (Agency) filed a juvenile dependency petition pursuant to 300(b) W&IC on behalf of C.P. (born June 2007). After two amendments, the petition alleged: (1) Mother, who had a history of substance abuse, was terminated from the shelter where she had been living with C.P. for failure to comply with the rules of the program — specifically, by testing positive for drugs and alcohol, failing to pay deposits, having friends in the shelter after hours, and leaving C.P. unattended — thus placing the child at risk of significant harm and neglect; and (2) Mother had tested positive for marijuana at C.P.'s birth and had failed to comply with a voluntary case plan. C.P. was detained and placed in shelter care.

The detention report stated that Mother informed the Agency on January 10, 2008, that her mother had Cherokee blood, but she did not know whether they were enrolled in an Indian tribe. She apparently also told the Agency her father might have Blackfeet heritage. The Agency's combined jurisdiction and disposition report, as amended March 5, 2008, stated that ICWA notice had been sent to three Cherokee tribes and the Blackfeet Tribe of Montana, and all four tribes had responded that, based on the information provided, C.P. was not a member or eligible for membership.

Prior to the six-month review hearing, C.P.'s foster parents petitioned for de facto parent status, which was ultimately granted. Meanwhile, in its February 9, 2009, 12-month addendum report, the Agency recommended C.P.'s return to Mother's custody. The Agency also wrote that new ICWA notice had been sent to the three Cherokee tribes in December 2008. Two of the tribes had responded and more than 60 days had passed since the third tribe had been provided notice. The Agency recommended the court find that the ICWA did not apply. At a February 11, 2009 hearing, the court returned C.P. to Mother's custody, terminated Terry and Denise W.'s de facto parent status, and ruled that the ICWA did not apply.

Mother appealed both the granting of de facto parent status (arguing that "the issue is technically moot, but...it is capable of repetition yet evading review and...it is an issue of continuing public importance" and the sufficiency of the ICWA notices. However, the appellate court deemed both these issues moot and dismissed the appeal.

Opinion: A122677.PDF, A122677.DOC

In re A.O. (Unpub'd), No. A122663

A.O. was born in January 2007. Three days later, the Contra Costa County Department of Children and Family Services (the Department) filed a petition alleging she came within 300(b) W&IC because, among other things, A.O. and mother tested positive for methamphetamine, amphetamine, and ephedrine when A.O. was born, mother admitted using methamphetamine one day prior to A.O.'s birth, and Robert O. (alleged father) had a serious and chronic substance abuse problem which impaired his ability to parent A.O.

The court detained A.O. following a detention hearing on January 19, 2007. At a combined jurisdiction/disposition hearing on March 8, 2007, the court adjudged A.O. a dependent of the court and denied reunification services as to mother. The court set a date for the 366.26 hearing and advised mother and Robert O. of their right to seek writ relief. Derek O. (later found to be the minor's biological father) was not present at the detention, jurisdiction, or disposition hearings.

On June 8, 2007, the Department informed the court that Derek was A.O.'s biological father. The Department explained that Derek "voiced his desire to gain custody of [A.O.] and raise her. [Derek] currently resides with his parents. He has stated if he is unable to raise [A.O.] on his own, his parents would be able to help raise her." The Department further noted that A.O. had been placed with her half-sister's paternal grandmother and that her caretaker was completing an adoption home study. Shortly thereafter, the court appointed counsel for Derek. The Departement agreed to provide Derek "with referrals for random drug testing, drug treatment, and parenting classes" and recommended that Derek be provided with six months of family reunification services.

At an interim review hearing, Derek agreed with the Department's recommendations, but stated that he "would like things to go somewhat faster than what would be contemplated by a six- month review." The court followed the Department's recommendations regarding Derek's paternity status. The court advised him that he had six months to "successfully complete a reunification plan to reunify with [A.O.]" Derek indicated he understood the possible consequences of a failure to complete the reunification plan.

At a six-month review hearing, the Department noted that Derek had failed to comply with significant portions of his case plan, that he had tested positive for methamphetamine once and missed several other drug tests, and that he had violated his case plan by allowing mother to visit A.O. during one of his unsupervised visits. At the conclusion of the hearing, the court granted Derek three additional months of reunification services and ordered the Department to notify it immediately if he had a missed or positive drug test.

In late February, the Department submitted a memorandum updating the court on Derek's compliance with drug and alcohol testing. In the memorandum, the Department stated Derek had missed two drug tests in December 2007 and one test in January 2008. The memorandum noted, however, that he tested negative 13 times between December and February 2008.

In a report prepared for the 12-month review hearing, the Department recommended terminating reunification services and setting a .26 hearing. The Department noted that although Derek had "made more of an effort to complete his court ordered case plan," he "lack[ed] the commitment and drive towards getting to know his daughter and in meeting her essential needs." The Department faulted him for only visiting A.O. for two hours once a month and for not taking advantage of the Department's offer to "have more opportunities to visit with his daughter." According to the report, Derek seemed "very unaware of how to meet the basic needs of [A.O.]" and had an inexperienced "approach to parenting."

At the conclusion of the 12-month review hearing, the court terminated reunification services and set a 366.26 hearing. The court concluded returning A.O. to Derek's custody would create a substantial risk to her well-being. At a September, 2008, 366.26 hearing, the court terminated Derek's parental rights. It concluded by clear and convincing evidence that A.O. would be adopted and that it would be detrimental for her to return to Derek's custody.

Derek appealed, arguing that the Department had failed "to adhere to the required statutory procedure under section 361.2" at the July, 2007 hearing and that all orders made on or after that date were thus invalid and must be reversed. According to Derek, the court's failure to proceed under section 361.2 at the July 16, 2007 hearing "denied [him] his constitutional rights to due process and equal protection of the laws throughout the proceedings." He further argued that his attorney's failure to appeal those orders constituted ineffective assistance of counsel.

The appellate court held that, because Derek failed to appeal the dispositional order and failed to petition for extraordinary writ following the order setting the 366.26 hearing, those claims are waived in the present appeal. With regard to the ineffective assistance of counsel claim, the appellate court noted that "[w]e cannot assume that the decision was the result of negligence, when it could well have been based on some practical or tactical decision governed by client guidance". The appellate court also noted that "This case exemplifies the 'late- stage "sabotage of the process"' that the waiver rule is designed to prevent" and that Derek's claim of ineffective assistance of counsel was thus also barred by the waiver rule.

The juvenile court's orders were thus affirmed, and the appeal was denied.

Opinion: A122663.PDF, A122663.DOC

S.V. v. Superior Court (Unpub'd), No. F057041

In February 2007, S.V. (mother) was waiting at a bus stop with then 10-month-old D. when she left D. unattended in his stroller to fight with a woman at the bus stop. At the time, S.V., who has a history of drug and alcohol abuse, was under the influence of alcohol. She was involuntarily committed because she was acting strangely and D. was taken into protective custody by the department of social services (department) and placed in foster care.

The juvenile court adjudged D. a dependent of the court pursuant to section 300 and ordered him removed from petitioner and his father D.A. The court ordered reunification services for both parents. Services included parenting classes, mental health and substance abuse evaluations, and random drug and alcohol testing.

In its 12-month status review, the department reported petitioner and D.A. (father) made significant progress but had not ameliorated the problems that necessitated D.'s removal. However, the department anticipated the parents would complete all court-ordered services by the 18-month review hearing. Consequently, the department recommended the court continue reunification efforts and grant the department discretion to arrange liberal visitation.

In July 2008, at the 18-month review hearing, the juvenile court terminated petitioner's reunification services and placed D. with her under family maintenance. The court continued the matter to September 2008 and set a combined hearing to review petitioner's progress under family maintenance and adjudicate the department's recommendation to terminate D.A.'s reunification services.

In August 2008, a police officer was dispatched to a bus stop after an anonymous caller stated petitioner was drinking alcohol and asked the caller if she would take her children because she could no longer care for them. Petitioner was drinking malt liquor beer and, according to the police officer, was clearly intoxicated. She registered a reading of 0.11 on the breathalyzer. In addition, she was acting strangely. At one point, she picked then six-month old S. up and yelled, "Here take them if that is what you want." Petitioner was arrested and charged with felony child endangerment, public intoxication and resisting arrest.

The department took the children into protective custody and filed a 300 petition as to S., alleging petitioner and D.A.'s substance abuse and failure to comply with their court-ordered services placed S. at a substantial risk of harm. The department also filed a 387 petition as to D. alleging, family maintenance had not been effective in protecting D. because, despite 18 months of reunification services, petitioner relapsed and was intoxicated while caring for D. The court set a combined detention hearing for both petitions.

The juvenile court ordered the children detained and set a contested 18-month review hearing as to D.A. The court also set a jurisdictional hearing and ordered the department to continue providing petitioner and D.A reunification services. The court vacated the September 2008 family maintenance review hearing. In September 2008, the juvenile court terminated D.A.'s reunification services as to D.

In November 2008, the juvenile court sustained the original petition as to S. and the supplemental petition as to D. after petitioner and D.A. waived their trial rights. The court set the dispositional hearing on both petitions for December 2008. In its dispositional report, the department recommended the court deny petitioner and D.A. reunification services as to both children; petitioner under section 361.5(b)(13), and D.A. under 361.5(b)(10) and (b)(13).

A combined contested dispositional hearing was held in February 2009. Following testimony and argument, the juvenile court adjudged both children dependents of the court. The court terminated petitioner's reunification services as to D. and set a section 366.26 hearing to implement a permanent plan. As to S., the court found petitioner and D.A. made significant efforts and ordered the department to provide them reunification services.

Mother appealed (via extraordinary writ request) the order terminating reunification services as to D., arguing that the juvenile court's order granting her reunification services as to S. implies she has the potential to regain custody of her children, and that it is in D.'s best interest to be reunited with her and S.

The appellate court held that the juvenile court did not abuse its discretion in refusing to continue petitioner's reunification services as to D. because "the circumstances which prompted D.'s removal in August 2008 are a virtual replay of the circumstances which necessitated his removal in February 2007." Accordingly, the petition for extraordinary writ was denied on its merits.

Opinion: F057041.PDF, F057041.DOC