In re D.A. v. D.A.

In re D.A., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.A., Defendant and Appellant.

B223821

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Dated: June 29, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(c/w B226269)

(Los Angeles County Super. Ct. No. CK64026)

APPEAL from findings and orders of the Superior Court of Los Angeles County. Donna Levin, Juvenile Court Referee. Affirmed in part, reversed in part and remanded to the juvenile court with directions.

The Law Office of Liana Serobian and Liana Serobian for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.

D.A. (mother) appeals from various rulings of the juvenile court with respect to the dependency case initiated on behalf of her daughter, D.A. (minor). According to mother: (1) the jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b) and (c)¹ were not supported by substantial evidence; (2) the juvenile court denied mother a fair jurisdictional hearing due to evidentiary error and the appearance of bias; (3) the juvenile court abused its discretion by refusing to order the minor placed in the home of her aunt and uncle; and (4) the juvenile court improperly delegated power to third parties to determine the duration and frequency of visits and conjoint counseling. We conclude that the evidence did not support jurisdiction under section 300, subdivision (b) and therefore reverse the related findings and order. We reverse the visitation order and remand with instructions for the juvenile court to enter a new visitation order that sufficiently defines mother's rights. In all other respects, we find no error and affirm.

FACTS

Mother's marriage; the minor's birth; immigration to the United States

Mother married E.A. (father) in Kenya in 1993 and she conceived the minor in a planned pregnancy. The minor was born in January 1994. Two years later, father was killed in an auto accident. Mother moved to California in 1997 to further her education. She enrolled in Santa Monica City College and then transferred to the University of California, Los Angeles and earned a Bachelor of Science degree in nursing. While mother was attending school and getting settled, the minor stayed in Kenya with her maternal aunt and uncle, Mary K. (Mary) and Phillip K. (Phillip). During the time the minor was being raised by Mary and Phillip, mother spoke to the minor on the phone daily and traveled to Africa for month long visits. Mary, Phillip and the minor moved to California when the minor was six years old. A half a year later, mother and the minor reunified.

Two prior referrals; the prior dependency case; the minor's difficulties in school; the three letters

In 2004, the minor was doing poorly in school, lying and getting into trouble. As a result, she went to counseling with a school counselor. She told the counselor that mother hit her on the forearm with a curtain rod upon learning that the minor stole from a classmate. She also said that mother had hit her in the past with belts, belt buckles and the heel of a shoe on the buttocks, back and other areas. The counselor reported the abuse to the Department of Children and Family Services (Department). It investigated. The referral was substantiated and the family was categorized as low risk for future abuse. The social worker explained to mother that when disciplining the minor, mother should use alternative forms of discipline such as time outs and other forms of behavioral modification. Mother agreed. The minor said she felt safe with mother. She promised that she would attempt to do better in school and stay out of trouble. The social worker referred mother to the ACTION program and individual counseling. The referral was closed without services being offered.

The minor was suspended from junior high school in May 2006 for fighting with a student on a bus. Later that year, she told her algebra tutor that she was "boy crazy." She was out of control and defiant, so mother placed her in boarding school. The boarding school, however, expelled her because she could not get along with the other students. Mother enrolled the minor in a private school but soon pulled her out upon catching the minor going to a party with some kids who mother believed were negative influences.

The minor wrote a letter to mother dated September 16, 2006, in which she stated: "I want to [apologize] for being a disgrace to you. I was really trying hard to be good. Remember when we went to church and the pastor preached about how you can be so good then Satan comes in and you do something bad[?] I think that is what happened. Although I am not trying to make excuses for my actions, I will take full responsibility for my actions good and bad. I am very sorry for being the way I am. I don't know what's wrong with me but I will try to make you proud. I have improved my grades a bit but that doesn't matter unless I shape up. I know you work hard to provide for me byyourself and I am trul[]y grateful for that. I also know that when you get mad when I do something bad it is because you work so hard that it frustrates you and also because you want me to become a better person. I appreciate you and everything you do. I may not show it but I really do. . . ."

In a letter with the same date, the minor wrote to someone named "Sarah" and apologized for stealing her money.

In October 2006, the Department received a second referral. The minor disclosed that mother struck the minor on the hand with a curtain rod because she had friends in the family home without permission. She suffered a broken finger. Afterwards, mother took the minor to the emergency room and instructed her to lie and say she had injured her finger after falling while on a hike. The minor also reported that mother had recently hit her with a curtain rod for stealing from a houseguest. Further, the evidence revealed that on numerous occasions, mother struck the minor with a broom and wooden stick and forced her to wear long sleeves to cover the bruises. The Department detained the minor and placed her with relatives. It filed a petition on the minor's behalf pursuant to section 300, subdivisions (a) and (b). The petition was sustained but the minor was not removed from mother's custody.² The Department provided family maintenance services and mother completed all of the counseling that the Department asked her to complete. ³ In addition, mother took the minor to court-ordered therapy and her behavior improved for a while. The juvenile court terminated jurisdiction in October 2007.

In a letter to mother dated November 15, 2008, the minor apologized to mother for changing a phone plan without permission and promised to get a job to earn money to pay the phone bill. She ended the letter by stating: "I . . . realize that you love me and just want the best for me but I keep disappointing." In an undated letter to mother, the minor wrote: "I am writing this letter of apology for my poor behavior. I wish to say that all my bad actions are not tolerated by you and that I understand that. I am sincerely asking for your forgiveness for my bad behavior. I hope we can have a good mother-daughter relationship. I know that if I stay on your good side, we can be able to do that. I really do want that relationship where I can just come to you for anything. I know to achieve that I will have to make you a proud mother. I hope that you can find it in your wonderful heart to be able to forgive me. I am truly sorry for my bad behavior."

Until mid-2009, the minor received mostly As and Bs in school and an occasional C. She was receiving counseling at her school in Newbury Park. But in June of that year, she was expelled from school. Mother did not take the minor to any more therapy. She was going to church and talking to church counselors instead. The minor continued to lie to mother and be defiant. Her bad behavior came and went. In the fall of 2009, her grades plummeted and she began receiving some Cs, Ds and Fs in her classes. A progress report stated that her grades were affected by absences and lack of effort.

The minor's behavior in early 2010; the minor's purported desire to kill herself; the investigation

The minor began hanging out at a park to have sex.

In mid-February 2010, mother's brother, Joseph O. (Joseph), went to pick the minor up from high school. She was supposed to be attending track, an athletic program. But she was absent. He texted her and she texted back that she was at Central Park, which Joseph thought was strange. He found her dressed in "hoochie" shorts and asked why she was dressed that way. She said that she had just come from track practice. In his mind, it did not look like she had exercised.

Irene, mother's niece, told mother that the minor was seeing an 18-year-old boy. Mother searched the minor's room and found condoms and vaginal contraceptives underher bed. She spoke to the minor for three hours about safe sex practices. Subsequently, mother took the minor to get checked by a doctor. The doctor scheduled a blood test to determine whether the minor had contracted any sexually transmitted diseases.

On March 23, 2010, the minor's school counselor called mother to report that she had been missing class and track. As a result, she had been removed from the track team. The minor was supposed to be home at 4:30 p.m. after track and call mother to report in. The minor did not call. Mother got home from...