L. A. Cnty. Dep't of Children & Family Servs. v. Ruth H. (In re Bella M.)

In re BELLA M., a Person Coming Under the Juvenile Court Law.

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

B289023

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

October 24, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. CK59155)

Appeal from an order of the Superior Court of Los Angeles County, Stephen C. Marpet, Juvenile Court Referee. Affirmed.

Lori N. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

____________________

Ruth H. (mother) appeals from the findings and order terminating her parental rights under Welfare and Institutions Code section 366.26.¹ Mother² contends the court abused its discretion when it denied her request to have her six-year-old daughter, Bella M., testify. Mother sought to introduce Bella's testimony in support of the parental relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). Finding no abuse of discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother was a longtime user of methamphetamine, and her four oldest children were detained from parental custodyand declared dependents in 2009. On September 26, 2011, the dependency court terminated mother's parental rights as to those four children.

This case concerns mother's two youngest children: Bella, who was born in January 2012, and Mason M., who was born in January 2013.³ In May 2014, the Los Angeles County Department of Children and Family Services (Department) started an investigation after mother's erratic behavior led to a psychiatric hospitalization. The children were detained and placed with foster parents. The court granted mother and father twice weekly monitored visits. The court exercised dependency jurisdiction based on mother's unresolved history of substance abuse and her failure to reunify with the four older siblings.

Between May and December 2014, mother's visits were consistent and positive, and foster parents did not report any concerns. Mother enrolled in a substance abuse program and was testing negative for drug use. However, in December and January, mother had a series of setbacks⁴ and she briefly relapsed into drug use, failing to appear for drug tests five times and testing positive once. By February 2015, she was again consistently testing negative for drugs.During this time, the Department reported no problems with visitation, which remained consistent.

At the six-month hearing on March 24, 2015, the court found mother to be in partial compliance with reunification services, ordering visits and reunification services to continue. The foster parents advised the social worker that they were not interested in adoption, but were willing to continue as foster parents until a permanent placement was found. In April 2015, the Department worked with mother and the foster parents to change the visitation schedule from twice weekly two-hour visits to weekly four-hour visits on Saturdays, in order to accommodate mother's work schedule. Mother maintained consistent visitation and her visits remained monitored.

By July 2015, mother had obtained employment and was living with her sister. She completed a parenting course and a one-year drug treatment program, and had connected with a sponsor. She felt ready for unmonitored visits, but the Department had not yet liberalized the visits because mother had three no-shows and one positive drug test, scattered amongst 18 negative drug tests. The social worker observed that mother struggled to control her anger when she was upset. The Department recommended continued reunification services, as mother was highly motivated, but needed more time to demonstrate full compliance. By the time the Department prepared a last minute information in September 2015, mother had missed four of five drug tests, and so the Department recommended against liberalizingher visitation. At the 12-month review hearing, the court found mother in partial compliance with her case plan, ordered continued family reunification services, and granted the Department the discretion to liberalize mother's visits to be unmonitored.

In October and November 2015, mother missed almost all of her drug tests, testing negative only once, and testing positive for amphetamines and methamphetamines twice. She maintained visitation, except for a three-week period when she did not visit the children. The foster parents reported she was appropriate, but would sometimes cut the visits short because she was tired. By December, the Department recommended terminating mother's reunification services.

At the 18-month review hearing on December 17, 2015, the court terminated mother's reunification services, and scheduled a hearing for permanency planning under section 366.26. It directed the Department to begin the process under the Interstate Compact on the Placement of Children (ICPC; Fam. Code, § 7900 et seq.) to possibly place the children with a paternal aunt in Texas. The court also ordered mother's monitored visits to continue. The foster parents⁵ were aware that the children had an out-of-state relative who was interested in adopting them. Theyinformed the social worker that if efforts to place the children with family did not succeed, a relative of the foster parents was interested in adopting.

Between December 2015 when her reunification services were terminated and April 2017, mother visited the children less frequently and her visits remained monitored. On October 6, 2016, the Department reported mother was only visiting the children twice a month, and that no visit took place during August. Mother would sometimes call to change the time or location of the visit at the last minute. When a social worker asked Bella about her mother, she stated "I miss her."

In October 2016, the paternal aunt who was being evaluated as a permanent placement for the children was in the process of moving from Texas to California. The Department reported it would wait until the aunt had completed her move to conduct the required evaluations. In November 2016, the adoptions social worker contacted the foster parents' niece to inform her about the adoption process, as she had also expressed a desire to adopt the children. By April 2017, the niece had completed the necessary classes and submitted documentation for a home study. The children were already familiar with her because of her relationship with the foster parents. By July 20, 2017, the children's placement had transitioned from foster parents to their niece and her husband as prospective adoptive parents. A home study was approved in January 2018.

In the meantime, Mother restarted therapy in August 2016 and achieved sobriety in October 2016. Mother maintained her sobriety and consistently attended therapy. Sometime after April 2017, mother resumed more consistent visitation with the children, and the prospective adoptive parents reported that visits were appropriate.

In late July 2017, mother filed a petition under section 388 seeking reinstatement of reunification services, as well as unmonitored visits. The court denied the petition without a hearing.

In a status review report prepared in early February 2018, a social worker observed that the children's transition to living with their prospective adoptive parents in July 2017 was "effortless" as they already knew the couple and were used to spending time with them at family gatherings and weekend dinners. Mother reported she loves her children and asked whether the prospective adoptive parents were open to having an "open adoption." When the social worker explained that the prospective adoptive parents were not open to such an arrangement, mother responded "I know they are good people and that they will take good care of my kids; I just hate the fact that I may lose them."

Mother filed a second section 388 petition on January 25, 2018, attaching documentation of her continuing sobriety and participation in programs, as well as positive observations about her visits with the children.

The Department's March 20, 2018 interim review report contained information from a social worker'sinterview with the children a week earlier. Mason and Bella were five and six years old, respectively. The children did not appear interested in talking about mother and were not too responsive when the social worker mentioned mother's name. When the social worker asked who the children play with at the park, the children initially identified their current and former caregivers (the prospective adoptive parents and former foster parents) and other relatives of their caregivers; they did not mention mother. When the social worker asked about mother by name, Bella said "She's our mom from the park, or Chuck E. Cheese or the place where you run." She spoke positively about playing with mother, but identified her prospective adoptive mother in more of a parental role, stating "Before I lived with [foster mother] but I wanted to change because it's a better house. I saw this house and I liked this house. I saw a new mom and I wanted to go with [prospective adoptive mother] and I moved into this house. And I like going up the hill because sometimes I can roll." When Mason was asked about mother by name, he only said "she has a house. She plays with us. We play tag." He did not make any other statements about mother.

On March 23, 2018, the court held hearings under sections...