Los Angeles County Dep't Of Children v. Rosalin M

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

v.ROSALIN M., Objector and Appellant.

B220920

No. CK57523

Court Of Appeal Of The State Of California

Second Appellate District

Division Five

Filed 07/12/10

Aida Aslanian, under appointment by the Court of Appeal, for Objector and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

APPEAL from an order of the Superior Court of Los Angeles County, Donna Levin, Referee (pursuant to Cal. Const., art. VI, § 21.) Affirmed.

INTRODUCTION

R.M. (mother) the mother of K.M., born September, 2007, appeals from the termination of her parental rights to K.M. Mother contends that the juvenile court erred in failing to find the parental visitation exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)¹ (§ 366.26(c)(1)(B)(i))) and the sibling relationship exception (section 366.26, subdivision (c)(1)(B)(v) (section 366.26(c)(1)(B)(v))) to the termination of parental rights. Mother further contends that the juvenile court was biased against her and that such bias violated her rights to due process and equal protection. We affirm.

BACKGROUND

The following facts and procedural history are taken from our May 12, 2009, opinion (case number B211497) denying mother's petition for extraordinary relief seeking to set aside the juvenile court's section 300 findings and denial of family reunification services:

"K.M. was born in September of 2007. On April 24, 2008, the Department of Children and Family Services (the Department) received a referral that alleged that mother was neglecting K.M. The referral also asserted that mother's home was dirty, piled with trash, and contained roaches.

"An emergency services worker went to mother's home and determined that the allegations were unfounded. She detained K.M., however, because of the mother's prior history with the Department concerning the death of K.M.'s sibling, K.S. The detention report stated that mother's live-in companion, and the father of K.S., D.S., had repeatedly severely abused K.S. by striking him with a brush, a comb, a belt and his hands. In addition, D.S. had grabbed K.S. by the legs resulting in K.S. sustaining a bump to his head. Further D.S. repeatedly locked K.S. in a closet when the child cried. D.S.'s actions led to the death of K.S. four months after he was born. The coroner found that K.S. hadan acute left parietal skull fracture. Mother was present when D.S. abused his four month old child and took no action to protect K.S. Moreover, mother also repeatedly locked her child, K.S., and her other child, K.B. in a closet. D.S. abused mother's other children, and again, mother did nothing to stop him from physically harming her children. As a result, mother's older children were removed from her custody.

"When questioned about the death of the infant, K.S., mother stated: 'Now, do I think that he killed the baby? Yes I do. There was always [a] little jealousy about how much attention I was spending with the baby and doing things for the baby. I think he was capable of it.' As a result of the investigation, on April 29, 2008, a dependency petition was filed regarding K.M. alleging that she came within the provisions of section 300, subdivisions (a) (b), (f) and (i). A first amended petition was filed on June 24, 2008 and added section 300, subdivision (j), as well as the 'alleged father, ' D.S. Despite the fact that mother believed that D.S. had killed her child, and, as a result the older children had been removed from her custody, she continued to see D.S. She had an encounter with D.S. in December, 2006. Specifically, mother testified that she had met D.S. at a party, 'emotions [got] the best of [her] and that's how we ended up having sex.' Consequently, D.S. could well be the father of K.M. despite the fact that mother named two other men as the possible father.

"On August 7, 2008, the adjudication hearing as to K.M. was held. The juvenile court sustained allegations under section 300, subdivisions (a) (substantial risk child will suffer seriously physical harm, (b) (substantial risk child will suffer serious physical harm or illness due to negligence or failure to supervise), (f) (parent caused death of a child by abuse of neglect), and (j) (sibling has been abused and neglected and risk child will be abused or neglected), as a result finding that mother was complicit in K.S.'s death; that D.S. was not out of mother's life; that there was a substantial risk of harm to K.M. because of D.S.'s access and mother's previous failure to protect her children; and that there was a substantial risk of harm to K.M. The juvenile court continued the matter for disposition.

"Following the contested hearing on October 17, 2008, the juvenile court removed the child from the parents' custody pursuant to section 361, subdivision (c), and ordered no reunification services pursuant to section 361.5, subdivisions (b) (4), (6), and (10) and section 361.5, subdivision (c). The matter was set for a hearing to select and implement a permanent plan under section 366.26."

Mother filed a petition for extraordinary relief in this court seeking to set aside the juvenile court's section 300 findings and denial of family reunification services. In her petition, mother made the following contentions: the juvenile court erred at the dispositional hearing by shifting the burden of proof to her, by applying the wrong standard, by admitting hearsay statements in a social worker's report, and by making a decision that lacked substantial evidence to support it. Mother only challenged the dispositional order on the ground that the jurisdictional order was erroneously granted. Because sufficient evidence supported the section 300, subdivision (f) allegation-"[t]he child's parent or guardian caused the death of another child through abuse or neglect"-we denied mother's petition.

The following facts and procedural history concern matters not addressed in our May 12, 2009, opinion:

At the October 17, 2008, hearing, the juvenile court stated that it wanted a progress report prepared for November 14, 2008, ² that included a report on the placement of K.M. with her maternal aunt, M.W., and uncle in Arizona. Counsel for the Department stated that an Interstate Compact for the Placement of Children (ICPC) referral had been made to Arizona. The Department's November 14, 2008, Interim Review Report recommended that K.M. remain placed with her caregiver, A.J., until the Department received ICPC approval to place her with maternal aunt in Arizona. On November 14, 2008, the juvenile court gave the Department discretion to place K.M. with maternal aunt in Arizona once the ICPC placement was approved.

The Department's February 13, 2009, Section 366.26 Report states that K.M.'s caregiver reported that mother visited K.M. for half a day every Saturday and Sunday and went on outings with K.M. such as to the zoo, museum, and park. According to the caregiver, mother participated in K.M.'s life and outside activities. The caregiver stated that she was comfortable allowing mother to have extended visits on the weekend due to conflicting schedules during the week. The report states that the caregiver provided K.M. with unconditional love and had been more than cooperative with mother by allowing mother to have longer visits with K.M. The caregiver informed the social worker that she was interested in being K.M.'s legal guardian.

The report states that maternal aunt was "more than interested" in adopting K.M. and had been taking adoptive care classes. The ICPC was approved on December 19, 2008. The Department requested that K.M. be placed with maternal aunt. Due to this court's February 11, 2009, stay order, the juvenile court declined to place K.M. with maternal aunt and continued the matter.

The Department's April 17, 2009, Status Review Report states that K.M. was happy and comfortable in the caregiver's care. The caregiver had no issues or concerns with K.M. The caregiver was in the process of adopting a three-year-old child and also was a foster parent to a two-month-old child. The caregiver reported that mother had regular weekend monitored visits with K.M. and met at the caregiver's house or McDonald's. Mother visited a half day on Saturdays and Sundays. Mother also went on outings with K.M. such as to the zoo, museum, and park. Mother actively participated in K.M.'s life and outside activities. According to the caregiver, K.M.'s 18-year-old sister, K.G., attended almost all of mother's visits. K.M. reportedly enjoyed visiting with mother and often smiled and laughed with mother. Maternal aunt reportedly had spoken to K.M. only twice, but was planning to come to California to visit her. The Department continued to recommend that K.M. be placed in maternal aunt's home in Arizona. On April 17, 2009, the juvenile court continued the matter to June 5, 2009, for a section 366.26 hearing.

A Last Minute Information for the Court for the June 5, 2009, hearing states that maternal aunt continued to be committed to adopting K.M. Maternal aunt and her family expressed "extreme love and ability to care for the child." Maternal aunt's family had made the appropriate space and accommodations for K.M. and had made several face-toface visits and telephone contact with K.M.

At the June 5, 2009, hearing, the juvenile court asked if any party wished to address the Department's request that K.M. be placed with maternal aunt in Arizona. Mother's counsel objected, stated that K.M. was bonded with mother and her caregiver and that although maternal aunt was a relative, maternal aunt did not have the same bond with K.M. as did K.M.'s caregiver. K.M.'s counsel requested the matter be put over so that the Department could inquire of the caregiver, apparently concerning whether the...