Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 05CEJ300110-4 Jane Cardoza, Judge.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, A.P.J., Cornell, J., and Kane, J.
M.S. is the mother of five children. She appeals from an order entered at a post-permanency review hearing under Welfare and Institutions Code section 366.3 claiming the juvenile court erred in continuing an earlier order suspending visitation with her two youngest children, D.S. and M.S. We affirm the order of the court.
We shall refer to M.S., the mother, as mother and M.S., the child, as M.S.
Factual and Procedural History
In August of 2004, a Welfare and Institutions Code section 300 petition was filed alleging that mother’s five children come within the jurisdiction of the juvenile court because they were left home alone unsupervised in a hazardous and deplorable home environment.
All future code references are to the Welfare and Institutions Code.
The children were placed in foster care. The matter progressed through the system with mother initially making progress, regaining physical custody of her children, and then regressing to a point where the children were once again placed in foster care and reunification services to mother were eventually terminated. Problems persisted and in June of 2006, the court ordered the permanent plan of long-term foster care for the children.
Mother continued to visit the children regularly and consistently. D.S. and M.S. had behavioral issues at home, in school, and in daycare and their acting out would escalate before and after the visits with their mother.
The three older children were placed with their fathers and are not involved in this appeal. The father of D.S. and M.S. has not significantly participated in the proceedings involving D.S. and M.S and is not a party to this appeal.
Kerri Freeman, the clinical director of the California Psychological Institute conducted a bonding study in July of 2008. She interviewed mother and the respective foster parents of D.S. and M.S. In addition she conducted parent-child observations between mother and each of her children separately. She concluded that although D.S. and M.S. appear to have an attachment to their mother, it is not a healthy attachment and is not beneficial to either child. Ms. Freeman found the children would not be greatly harmed if their relationship with mother was terminated. It was her opinion that continuing the parent-child relationship would not promote the well-being of the children to such a degree that it would outweigh the well-being the children would gain in a permanent home with adoptive parents.
Although the case was referred to the California Psychological Institute for an attachment study, it was determined by Freeman that the more appropriate study was a bonding study. An attachment study is usually ordered when there is a very high chance the child will be returned to the parent. The bonding study is more appropriate when there is a possibility of terminating parental rights.
The Fresno County Department of Children and Family Services (department) recommended that legal guardianship was the most appropriate plan for D.S. and long-term foster care, with the permanent plan of adoption, should be the plan for M.S. The children’s therapists believed that continued contact between the children and their mother was detrimental to the children’s well-being.
A section 366.3 post-permanency review hearing was held on March 18, 2009. Freeman testified consistent with her report that the children have an unhealthy attachment to their mother, and it would be detrimental for the children to have continuing contact with her. She stated it was important for the children to form new and healthy attachments and exposure to a prior caretaker (mother) who is the source of the problems can cause regression.
The social worker testified that the therapists for D.S. and M.S. each thought it was in the children’s best interests to terminate contact with mother. It was stated that the unhealthy attachment of D.S. prevented him from forming healthy attachments.
Mother testified that she wanted to reunify with her children and have continuing contact with them. She was willing to participate in whatever services are necessary. She said that she left the children home without supervision because she did not trust care providers, having been molested herself as a child when she was left with a caretaker.
On March 25, 2009, the court held continued foster care remained the appropriate permanent plan. The permanency goal for D.S. was long-term guardianship and the goal for M.S. was adoption. The court ordered the suspension of visitation between the children and mother.
Although D.S. was devastated and his behavior continued to deteriorate after his visits with mother were discontinued, the recommendation of therapists and the social worker were that he not visit with his mother. The recommendation to not have mother visit M.S. was also maintained.
At a post-permanent plan review hearing on November 4, 2009, counsel for mother asked that the court reorder visitation with mother. Counsel for the minors disagreed.
The court continued foster care as the appropriate permanent plan and ordered that all visitation orders would remain as previously ordered.
Discussion
Mother contends the court erred in continuing to suspend visitation with her when she is available and appropriate and the children are damaged by the loss of their relationship with their mother. She argues that at some point the brakes have to be applied and the direction this case has taken should be re-examined.
Respondent makes several arguments regarding the propriety of mother’s appeal from the November order continuing the suspension of visits including a claim that mother has forfeited her right to challenge the order suspending her visits because she did not file an appeal from the March order suspending visits.
Mother’s visits with D.S. and M.S. were suspended at the conclusion of a full evidentiary hearing in March of 2009. At the November 4, 2009 review hearing, mother’s counsel asked that the order suspending visits be changed. It was mother’s position that the behavior of D.S. had deteriorated, the behavior of M.S. had not improved, and mother was ready and able to visit with the minors so there was no need for the minors to process their grief and loss in counseling. Counsel for the minors stated it was previously determined the best interest of the minors was to look for a more permanent plan that did not include reconciliation with the mother and the issue of returning the minors to her care had been resolved.
An appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.) Mother did not appeal from the March 2009 order suspending visitation. She cannot now challenge the correctness of that ruling.
Even if we construe mother’s appeal as a proper challenge to the November 2009 visitation order, her current argument fails on the merits. The best interests of the children were determined at the contested hearing in March of 2009. At the time of the March hearing, mother was willing and able to visit the children yet it was found that visitation was not in their best interests. At the November hearing, mother offered nothing to justify a change in the order. Her readiness and willingness to visit her children had not changed. The children’s desire to visit with their mother had not changed. The only change was that D.S.’s poor behavior had continued and become worse. D.S.’s poor behavior was attributed to his grief and loss associated with not having contact with his mother. Thus, mother did not present any evidence to suggest that the previous order, which she did not challenge on appeal, should be altered. Mother did not seek to present any additional evidence, did not request a contested hearing, and did not file a petition for modification alleging changed circumstances. Mother has failed to demonstrate the court erred in ordering the continued suspension of visitation. While she argues the devastation to D.S. of not having visits is antithetical to considering his best interests, she fails to consider the court found in an unchallenged order that it was in the best interests to discontinue visitation and she did not present new evidence to show otherwise.
Disposition
The order of November 4, 2009, is affirmed.