In re Jacob P.

68 Cal.Rptr.3d 817

157 Cal.App.4th 819

In re JACOB P., a Person Coming Under the Juvenile Court Law Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Michelle P., Defendant and Appellant.

No. B197375.

Court of Appeal, Second District, Division 7.

December 5, 2007.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

Konrad S. Lee, under appointment by the Court of Appeal, Riverside, for the Minor.

No appearance for Plaintiff and Respondent.

WOODS, J.

Michelle, the mother of twins Jacob and Jeremy, appeals from the order finding it was not in Jacob's best interest to be returned to appellant's custody. After appellant's reunification services had been terminated and a permanent plan of guardianship had been ordered for the twins, appellant filed a Welfare and Institutions section¹ 388 petition requesting termination of the guardianship and return of the twins to her custody and additional reunification services. The juvenile court granted the petition in, part and ordered the Department of Family and Children Services (Department) to provide the services. After Michelle completed the services, the court returned Jeremy to appellant's custody. However, Jacob requested a contested hearing at which the court applied the best interest test and found it was not in Jacob's best interest to terminate his guardianship. Michelle contends the court applied the wrong test as it should have used the pre-permanent plan presumption of return of sections 366.21 and 366.22, not the best interest test of section 388. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

1. Detention

Jacob, Jeremy and their older half-sister Andrea² came to the attention of the Department on May 20, 2003, as a result of a referral alleging physical and emotional abuse by appellant. During the investigation, it was revealed appellant had a history of substance abuse, engaged in domestic violence, physically and emotionally abused the children, and had a criminal history. The three children had been living with the maternal grandmother since January. Appellant had provided little support for them.

On May 27, the Department filed a petition on behalf of the children. That day, the juvenile court found a prima facie showing had been made and ordered the children detained in the maternal grandmother's home.

II. Jurisdiction/Disposition

In June, the Department reported that when Jacob was interviewed, he stated appellant and Stephen P., his father, fought only one time and appellant did not physically abuse him, but she did yell at him a lot. Jacob had seen appellant using drugs and smelled drugs in the home. Jacob wanted to live with his grandmother. Appellant was not interviewed as she had a pregnancy-related emergency. Appellant was incarcerated.

After mediation, appellant agreed to submit on an amended petition³ and to participate in reunification services. On July 9, appellant and Stephen submitted on the amended petition on the basis of the Department reports. The court found the allegations of the amended petition true, declared the children dependents of the court, and placed them with the maternal grandmother under Department supervision. The court approved a reunification plan for appellant requiring her to participate in drug rehabilitation with random testing, parenting education, an anger management program and individual counseling to address domestic violence. The court granted appellant monitored visits.

III. Reunification

During the first six months of reunification, Jacob and his siblings remained placed with the maternal grandmother and reportedly were doing well.

Although appellant initially enrolled in anger management, domestic violence and individual counseling, she had made little progress toward reunification and had "significant legal problems." Appellant missed many drug tests and tested positive. Appellant completed a parenting program, but then she dropped out of all programs and stopped testing. Appellant maintained contact with the Department and visited the children weekly.

On January 7, 2004, the court ordered the Department to provide appellant with another six months of reunification services.

During the second six months of services, Jacob and his siblings remained placed with the maternal grandmother and were happy in their placement and close to their grandmother. Jacob was attending Almansor Center, a special school, and therapy due to significant behavior problems and special needs. Jacob and Jeremy both stated they wanted their grandmother to become their legal guardian.

In July, the Department reported appellant had moved to Colorado without notifying it and obtained employment, but she was not working on her reunification plan. Appellant occasionally visited and called the children twice a week.

On September 13, the court ordered appellant's reunification services terminated. The court set a permanency plan hearing for guardianship for Jacob and Jeremy for January 11, 2005.

On October 18, the court ordered appellant's educational rights over Jacob limited and appointed the maternal grandmother to make any such decisions.

IV. Permanency Planning

On January 11, 2005, the section 366.26 hearing (.26 hearing) was continued for "further preparation."

In March 2005, the Department reported the children remained placed with their maternal grandmother, and Jacob continued to attend Almansor Center and therapy due to his special needs. Despite attending different schools, Jacob and Jeremy were close to one another. Appellant contacted the children by phone on a weekly basis.

On March 15, the court granted a permanent plan of legal guardianship and appointed the maternal grandmother as the guardian for Jacob and Jeremy.

In September, the Department reported the children continued to reside with their grandmother and Jacob continued to attend Almansor Center and therapy. Jacob and Jeremy participated in extracurricular activities together despite attending different schools. Appellant had not visited recently, but she called the children weekly.

On September 12, the court continued legal guardianship as the permanent plan and set the next review hearing for March 13, 2006.

V. Section 388 Petition

On March 9, 2006, appellant filed a section 388 petition seeking to set aside the legal guardianship and requested additional reunification services and immediate return of the children⁴ to her custody. Appellant alleged she had made a new life in Colorado with a home and employment, completed her reunification service plan, the children were bonded to her, she believed they wanted to live with her, and she visited the children in California as often as possible and maintained daily contact with them by phone. Attached to the petition was proof that appellant had obtained an apartment and employment, participated in counseling, and completed programs in anger management, substance abuse with random testing and parenting.

In the March report, the Department indicated Jacob remained in the home of his grandmother along with Jeremy and Andrea. Jacob and Jeremy had special needs. Jeremy was attending El Sereno Middle School and had an IEP (individualized educational plan) scheduled, and Jacob was still attending Almansor Center to address his behavioral problems. Jacob continued to attend therapy. Appellant visited on special occasions, and the visits were successful.

Jacob and Jeremy told the social worker they liked living with their grandmother, but they wanted to live with appellant because they could go to a better school in Colorado and missed appellant.

Appellant appeared at the March review hearing. The court granted a hearing on her section 388 petition and ordered the Department to prepare a report. The court approved unmonitored visits for appellant in California. The Departments response to the petition confirmed appellant had completed outpatient substance abuse treatment, an anger management program, and submitted regular negative substance abuse tests. The Department opined an appropriate assessment regarding return of the twins to appellant could not be conducted until she had overnight visits with them and was exposed to their needs. The Department recommended an ICPC (Interstate Compact on the Placement of Children) evaluation of appellant's home be conducted and, upon completion, appellant be granted overnight and weekend visits prior to the children being returned to her care.

On April 10, the court granted appellant's petition in part and ordered the Department to provide her with reunification services as to Jacob and Jeremy. The court ordered overnight visits for appellant in California and gave the Department discretion to grant overnight visits in Colorado. The court ordered an ICPC evaluation of appellant's home and set a review hearing pursuant to section 366.22 (.22 hearing). The court stated it was not terminating the guardianship because it did not know the outcome of granting the additional services.

VI. Additional reunification

In July 2006, the Department reported there had been problems with the ICPC evaluation of appellant's home.

Jacob and Jeremy told the social worker they both wanted to visit appellant and spend the summer with her and would likely want to begin living with her. The Department recommended a summer visit be authorized from August 3 to September 5 (both boys were required to attend summer school). The court authorized the recommended visit.

In October, the Department reported Jacob and Jeremy remained placed with their granamotner and the placement was stable. The boys were attending the same schools as before. Jacob had been diagnosed with ADHD and depression and was taking medication and attending therapy. Jeremy was diagnosed as bi-polar and was scheduled to begin individual counseling.

The summer visit had been successful; both boys were excited to see appellant,...