Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Referee. Affirmed. Los Angeles County Super. Ct. No. CK 58282
Judy Weissberg-Ortiz, under appointment by the Court of Appeal for Appellant Au.J.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel.
ZELON, J.
Appellant Au. J. (Mother) appeals from a post-permanency review hearing order (Welf. & Inst. Code, § 366.3). She contends the Department of Children and Family Services’ failure to timely provide her with a copy of the hearing report prior to the hearing resulted in per se reversible error, and that the orders entered at the hearing are invalid. We affirm.
All statutory references herein, unless otherwise noted, are to the Welfare & Institutions Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case has been before us on two prior appeals. Au.J. (Mother) is the mother of A.J. (born 1989), C.E. (born 1995), and Maya S. (born 2005). At the time of the March 2005 dependency petitions filed on behalf of her children, Mother, who is a registered nurse, had overcome previous alcohol abuse problems and was living with her children in a three-bedroom home.
The children all have different fathers. Maya was born with serious birth defects and passed away on March 18, 2007; on March 28, 2007, the dependency court terminated jurisdiction over her.
A. Background and Prior Appeals.
1. Case No. B183298 (March 22, 2006).
Mother got along well with C.E., but her relations with A.J. were tumultuous, and they fought often. Baby Maya suffered from numerous birth defects and had been sent home from the hospital shortly after birth with “do not resuscitate” (DNR) instructions because doctors believed that she would die in a few days. In spite of this, Mother took care of Maya, taking her to the pediatrician and educating herself on Maya’s birth defects.
The event precipitating the dependency proceedings took place shortly after Maya’s birth when A.J. ran away from home. She called Mother the next day to inform her that she was pregnant. Mother went to A.J.’s school several days later; they had a loud confrontation in the school hallway and Mother pulled A.J.’s hair. The police were called, and a referral was made to the Department.
At the detention hearing, A.J. was detained and placed in a maternity home; Mother was given monitored visitation with A.J. C.E. and Maya were released to Mother’s custody. Mother brought Maya to a hearing in April 2005, and called paramedics because Maya was having trouble breathing. Maya was taken by ambulance to the hospital. After Mother told doctors at the hospital that caring for Maya was very stressful, the doctor placed Maya on hospital hold, and a social worker thereafter detained Maya.
On April 15, 2005, the Department filed an amended petition, and the dependency court ordered C.E. and Maya detained. At the April 25 detention hearing, the dependency court ordered monitored visits for Mother and the children. At the May 18-19 adjudication hearing, the court heard testimony from A.J., and sustained the petition as to the majority of counts. The matter proceeded immediately to disposition, and the court ordered visitation, parenting education, counseling, and participation in a psychiatric evaluation.
We affirmed on appeal the dependency court’s jurisdictional and dispositional orders. (In re Maya S. (No. B183298, March 22, 2006) [nonpub. opn.].)
2. Case No. B197345 (December 12, 2007).
A June 17, 2005 interim review report indicated that C.E. remained in foster care, while Mother’s behavior continued to be erratic. Mother visited C.E. unexpectedly at school; she was disruptive at Maya’s hospital and at A.J.’s maternity home. On June 17, 2005, the Department also filed an application for an order that Mother stay away from Maya, on the grounds that Mother’s disruptive behavior put her at risk.
The interim review report dated July 14, 2005, disclosed that Maya was ready for discharge from the hospital, and that A.J. had given birth prematurely to a baby boy. Mother was receiving individual counseling and joint counseling with A.J., and had enrolled in parenting classes. Mother had maintained contact with her children, either in person or by telephone.
Mother’s therapist reported in August 2005 that Mother had acknowledged her history of alcohol and drug abuse, previous psychiatric admissions, and prostitution. Mother’s therapist found her “understandably overwhelmed as a result of her youngest daughter’s condition, the parent-child problems she has experienced with her oldest daughter, and the long-term effects of a life history replete with trauma and self-defeating, miscalculated attempts to cope. While her [psychological] test results do not point to a clear pattern of mental illness, her life history and presentation suggest difficulties of a paranoid nature.”
At the November 14, 2005 continued six-month review hearing, the court found that Mother had consistently and regularly visited with Maya and had made significant progress towards resolving the issues necessitating removal, had demonstrated the capacity and ability to complete the objectives of her reunification plan, and that there was a substantial likelihood Maya would be returned to Mother within the next period of review. The court advised Mother that if the children could not be returned home by May 8, 2006, reunification services could be terminated.
The report for the April 10, 2006 12-month review hearing stated that Maya continued to reside in the hospital, C. E. was on track developmentally, and A.J. continued to reside at the maternity home with her nine-month-old son. Mother had not been in therapy since September 2005, and her therapist was unable to provide a letter of progress because Mother refused to sign a release form. Mother had been consistent in visiting her children, and C.E. wished to return home. However, the Department did not recommend that the children be returned to Mother.
The special interim review report prepared for the continued May 24, 2006 hearing stated that the Department recommended C.E.’s current foster mother, who was willing to assume legal guardianship, as a possible long-term placement for C.E. On May 2, 2006, Maya was denied transfer from the hospital to a chronic-care facility.
At the May 24, 2006 hearing, the court found that although Mother had been participating in programs and visiting the children regularly, there was no indication she had made any progress in resolving the problems that led to their removal. The court found the department had complied with the case plan, and that Mother’s failure to make progress supported a finding that returning the children to her would be detrimental. The court concluded that setting a 366.26 hearing with respect to A.J. and Maya was unrealistic because they were not the proper subjects for adoption and there was no one willing to adopt them. Therefore, the court identified a permanent plan for A.J. of placement at the maternity home with selection of a caring adult to serve as a lifetime connection. With respect to Maya, the court stated it could not identify a permanent plan for Maya because she was too ill, and ordered a review of her situation every six months. The court set a 366.26 hearing for September 20, 2006, and terminated reunification services for Mother.
The Department’s section 366.26 report stated that the permanent plan for C.E. was legal guardianship with her current foster mother. At the September 20, 2006 hearing, the court found by clear and convincing evidence that C.E. was not adoptable and that it was in her best interests that guardianship be granted. The court identified a permanent plan of legal guardianship with the goal of terminating jurisdiction. Mother was given supervised visitation with C.E., and the court set the post-permanency hearing for February 21, 2007. Letters of guardianship for C.E.’s foster mother were issued.
The Department’s status review report for the October 25, 2006 section 366.3 post-permanent plan review hearing stated that Maya had been transferred to a care facility. Mother had been arrested for trespassing because she went to the facility without waiting for the social worker, and became aggressive. The care facility had suspended Mother’s visitation rights. A.J. had been arrested for assault and placed in a group home without her son.
On November 30, 2006, the Department filed a section 388 petition seeking to terminate Mother’s visitation with Maya. At the January 5, 2007 hearing on the section 388 petition, A.J.’s counsel advised the court that she had applied for a group home where she could live with her son. The Department, joined by Maya’s counsel, requested that Mother’s visits with Maya be terminated because they were jeopardizing the placement. The court terminated Mother’s visitation, but indicated that if Mother demonstrated she could comply with her case plan, the court would reconsider the matter on a section 388 petition. The court identified permanent placement at the care facility as Maya’s permanent plan, with the matter to be reviewed every six months. The court ordered A.J. into individual counseling and parenting classes.
The Department’s status report stated that C.E. was obtaining individual counseling and was having unmonitored visitation with Mother and A.J. C.E. was doing well in her placement. At the January 19, 2007 hearing, the court continued the matter to June 8, 2007 for further review.
On February 21, 2007, Mother filed a notice of appeal from the December 4, 2006, January 5, 2007, January 12, 2007, January 19, 2007 and February 21, 2007 orders. We affirmed on appeal the dependency court’s orders. (In re A.J. (No. B197345, December 12, 2007) [nonpub. opn.].)
B. The Current Appeal.
The current appeal concerns a section 366.3 post permanency plan hearing held July 9, 2007.
The Department’s Status Review Report prepared for the July 10, 2007 hearing stated that C.E. resided with her legal guardian Helen D., and A.J. was in a foster home. C.E. was attending sixth grade. C.E. had unmonitored weekend visits with Mother, which had been going well, but C.E. wished to remain with Helen.
A.J. was attending beauty college, but had recently quit her job because she was not making enough money. A.J.’s unmonitored visits with Mother had resulted in several confrontations, after which the police were called. A.J. was AWOL from her placement and returned late from her weekend visits. In May 2007 a team decision meeting was held; after the meeting, the Department found a new placement for A.J.
Mother was served with notice of the July 9, 2007 hearing on June 8, 2007. The notice contains a handwritten notation that the status review report was served on Mother on June 28, 2007. Mother, in a letter to the court dated July 9, 2007, admitted that she received the report on July 2, 2007, and that she read the report.
At the hearing, the bailiff informed the court that Mother had been in court earlier, but had left. Mother’s counsel stated that Mother had advised him she had to go to Georgia. Counsel advised the court he was in agreement with the Department’s recommendation that C.E. remain in her guardianship. The court found the permanent plan of legal guardianship with the goal of terminating jurisdiction appropriate and ordered it continued as the permanent plan. The court set December 10, 2007, as the next date for review. Regarding A.J., the court found the Department had complied with the case plan; progress made towards alleviating or mitigating the causes necessitating placement had been minimal; and compelling reasons existed for not returning A.J. to Mother. The court stated it had considered all permanency planning options, and that holding a hearing pursuant to section 366.26 was not in the best interests of A.J. because she was not a proper subject for adoption and no one was willing to consider guardianship. The court ordered permanent placement with Lennie P., with independent living and identification of a caring adult to serve as a lifelong connection for A.J. The court set December 10, 2007 as the next date for a post-permanency plan hearing.
DISCUSSION
Mother’s sole contention on appeal is that the requirement that a status review report be filed and served at least 10 days prior to the hearing is mandatory, the failure to provide such report is reversible error, and the hearing held July 9, 2007 without the benefit of improper service was improper. (See Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 547-548.)
We previously addressed this issue in In re A.J. (No. B197345, December 12, 2007) [nonpub. opn.]).
As we set forth in the previous disposition, at every stage of the proceedings in connection with the hearings held in dependency court, the Department is required to prepare and file reports and serve parents with notice. During the reunification stage, at the six- and 12-month review hearings, the social worker must file supplemental reports with the court and provide copies to all parties at least 10 days before each scheduled hearing. (§ 366.21, subd. (c).) In connection with the section 366.26 hearing, the Department must prepare an assessment. (§ 366.21, subd. (i).) Notice of the section 366.26 hearing must be made 45 days before the hearing date, and the report must be served on the parents at least 10 calendar days before the hearing. (§ 294, subd. (c)(1); Cal. Rules of Court, rule 5.725(b) and (c) (former rule 1463).)
At the reunification stage, a parent is entitled to receive the Department’s reports prior to the hearing. (Judith P. v. Superior Court, supra, at pp. 556-557.) However, while parents are entitled to notice of, and to participate in, post-permanency hearings (§ 366.3, subds. (a), (e)), they are not statutorily entitled to any reports prepared in connection with such hearings. (See, § 295; Cal. Rules of Court, rule 5.740 (former rule 1465).)
At the post-reunification stage, where a section 366.26 hearing has been set, the burden is no longer on the petitioning agency as it is during reunification to establish return of the child to the parent would be detrimental. (See Judith P. v. Superior Court, supra, at p. 546.) After the setting of the section 366.26 hearing, the burden shifts to the parent to establish that the statutory presumption of adoption should not apply. (See § 366.26, subds. (b), (c).)
Here, because the order at issue here concerned a post-permanency planning hearing, Mother was not entitled to the report in the first instance. In any event, the record indicates the reports were served 10 days before the hearing, and Mother received them one week prior to the hearing. Mother fails to demonstrate any prejudice from her receipt of the report one week in advance of the hearing, and makes no argument how the purportedly shortened time period affected any issues she might have raised at the hearing. Mother therefore has not established any error.
DISPOSITION
The order of the superior court is affirmed.
We concur: PERLUSS, P. J., WOODS, J.