Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, William E. Lehnhardt, Judge, Super. Ct. No. SJ010013
McINTYRE, J.
Cynthia M. appeals from an order of the juvenile court denying placement of her minor son, Ely M., in her care following a post-permanency planning hearing pursuant to Welfare and Institutions Code, section 366.3. Cynthia contends the court abused its discretion by finding it was not in Ely's best interests to place him in her care. We affirm the order.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, Ely became a dependent of the court when he was four years old. The police found Ely living in a river bed with his mother, Cynthia. Following a reunification period, Cynthia did not successfully reunify with Ely and Ely entered into a guardianship arrangement.
During the next several years, Ely developed extensive behavioral problems. He was diagnosed with intermittent explosive disorder, depression, defiant disorder, and learning disabilities. When he was about 10 years old, the police arrested Ely and placed him in juvenile hall after he attacked his guardian and his guardian's daughter. Ely submitted to a psychological evaluation that resulted in a diagnosis of post-traumatic stress and impulse control disorders. The evaluation recommended Ely be placed in a residential treatment facility. Following the attack, Ely's guardian alleged she could no longer care for Ely. The court terminated the guardianship, reinstated Ely's dependency, and he was placed in a group home.
In July 2002, Cynthia sought to regain custody of Ely. According to social workers from the San Diego Health and Human Services Agency (the Agency), Ely had adjusted well to his group home. The court held a post-permanency planning review hearing and found Ely's permanent placement in long-term foster care was appropriate and did not return Ely to Cynthia's custody.
During the next 12 months, Ely continued to live in a group home and appeared to be doing well. His behavior had generally improved and he had made friends at the group home and at school. Agency social workers attempted to contact Cynthia and schedule visits but were unsuccessful. The social workers recommended the court continue Ely's placement in the group home and the court followed the recommendation. The court suspended Cynthia's rights to make educational decisions on behalf of Ely. In her place, the court appointed a Court Appointed Special Advocate (CASA) to oversee Ely's education. The court also gave the Agency discretion to develop a visitation schedule for Cynthia once she resumed contact with the Agency.
By August 2004, Cynthia resumed contact with the Agency and had started to participate in weekly visits. The social workers reported the visits were appropriate and Ely appeared to enjoy spending time with Cynthia. In October 2004, however, Ely began to exhibit more behavioral problems. He became angry and violent toward others and had to be physically restrained. Following one of his outbursts, Ely destroyed property at the group home to such an extent that the group home issued an eviction notice. Ely participated in a psychological evaluation and was diagnosed with attention deficit disorder. The psychologist recommended Ely receive a psychiatric evaluation to ascertain his need for psychotropic medication. The psychologist believed Ely should be placed in a residential treatment facility where he would receive therapy to address his problems in a controlled environment.
Ely eventually transitioned from the treatment facility and back into a group home. Cynthia started to visit Ely on a regular basis and in April 2005, the court approved unsupervised visits between them and ordered that social workers assess Cynthia's home for placement. Although Cynthia's home appeared to be safe and stable enough for visitation, the social worker did not believe returning Ely to Cynthia was appropriate. The court continued Ely's placement in the group home.
During the next reporting period, Ely was expelled from high school for bringing a BB gun on campus that had been given to him by Cynthia. Ely participated in another psychological evaluation. Ely wanted ongoing contact with Cynthia but hoped to remain in his group home until he graduated from high school. Ely's psychologist recommended against returning Ely to Cynthia's care. The risk of placing Ely with Cynthia was high because she had not shown she had the ability to make appropriate decisions on Ely's behalf.
By May 2007, Cynthia had moved to Colorado and the Agency had little or no information about her living situation. Ely's behavioral problems continued to escalate and he recently was arrested and confined in juvenile hall after fighting with group home staff. Ely did not believe it was in his best interest to live with Cynthia. He instead hoped to be placed back in a group home once released from juvenile hall.
In July 2007, the court held a contested post-permanency review hearing. Ely was about 16 years old and Cynthia requested that Ely be placed in her care after 12 years of being out of her custody. She claimed to have secured stable employment in Colorado as a nurse's aid and that Ely could accompany her to work. In addition, Ely's grandparents and sister lived in Colorado and agreed to help care for him. She did not believe Ely had behavioral problems and claimed his problems were a result of all the rules in place at the group home.
Social worker Jane Sweet testified the best placement for Ely was a group home because he needed structure to address his behavioral problems. She did not recommend returning Ely to Cynthia because of the risks involved.
The court received Ely's stipulated testimony stating he loved Cynthia and wanted to live with her. However, if he could not live with her, he hoped to have weekend overnight visits and live in a foster home placement.
After hearing the witnesses' testimony and arguments of counsel, the court found it was not in Ely's best interests to return him to Cynthia's care. The court continued his placement in a licensed group home and allowed Cynthia to receive unsupervised visits.
DISCUSSION
I.
Cynthia asserts the court erred when it did not appoint someone to represent Ely's educational rights at the February 2003 and October 2004 post-permanency planning review hearings. She further asserts the court erred by adopting Another Planned Permanent Living Arrangement (APPLA) as Ely's permanent plan at the February 2003 hearing. To the extent Cynthia is challenging court orders issued following post-permanency planning review hearings held in February 2003 and October 2004, the Agency asserts these arguments are untimely. We agree.
Generally, in a juvenile dependency case heard by a judge, a notice of appeal must be filed no later than 60 days after the judgment is rendered or the order is made. (Cal. Rules of Court, rule 8.400(d)(1).) With exceptions not applicable here, when the matter is heard by a referee, the notice of appeal must be filed "within 60 days after the order . . . becomes final under rule 5.540(c)." (Rule 8.400(d)(2).) Here, Cynthia's time for appealing court orders from February 2003 and October 2004 hearings has lapsed because more than 60 days have passed since the court issued its orders. Cynthia also does not provide arguments or authority showing she has the legal ability to appeal these final orders now that the deadline has passed. (See In re Janee J. (1999) 74 Cal.App.4th. 198, 208.) Cynthia's appeal as relates to these arguments is therefore untimely.
All rule references are to the California Rules of Court.
II.
Cynthia argues the court did not properly exercise its discretion when it continued Ely's placement in a group home and failed to authorize Ely's return to her custody. She contends it was in Ely's best interests to place Ely in her care because he enjoyed his visits with her.
A trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Michael B. (1992) 8 Cal.App.4th 1698; In re Corey (1964) 230 Cal.App.2d 813, 832.) As one court has stated, when a court has made a custody determination in a dependency proceeding, " 'a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].' " (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " (Walker v. Superior Court (1991) 53 Cal.3d 257, 272, quoting Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
Following the termination of reunification services, if the minor is in a placement other than a legal guardianship, the court shall conduct periodic post-permanency planning review hearings. (See § 366.3, subd. (e).) At the hearing, the court is to consider the child's safety (§ 366.3, subd. (e)) and "determine . . . [t]he continuing necessity for, and appropriateness, of the placement." (§ 366.3, subd. (e)(1).) In addition, the court "shall consider all permanency planning options for the child including whether the child should be returned to the home of the parent, placed for adoption, or appointed a legal guardian, or, if compelling reasons exist for finding that none of the foregoing options are in the best interest of the child, whether the child should be placed in another planned permanent living arrangement." (§ 366.3, subd. (g).) After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point "the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
The record shows the court did not abuse its discretion by continuing Ely's placement in a group home. The court considered all permanency planning options available to Ely, including placement with Cynthia. Although Ely expressed that he wanted to live with Cynthia, returning Ely to Cynthia's care and custody was not a viable option. Cynthia had not consistently participated in reunification services in the 12 years Ely had been out of her care or shown the court she would be able to provide Ely with a safe and stable home. The record shows Cynthia was receiving parenting services in the months before the last review hearing took place. However, there is no evidence showing she completed these services or that she has an understanding of how to manage Ely's behavioral problems. When she started to receive unsupervised visitation, her parenting skills were called into question by psychologists and social workers after she gave Ely a gun as a gift that he later took to school. At the last review hearing, the court learned Cynthia had moved to Colorado. Although Cynthia claimed to have secured employment, there was little evidence to show she had made arrangements to address Ely's educational needs and behavioral problems if placed in her custody.
Based on these circumstances, the court properly considered another planned permanent living arrangement that consisted of Ely remaining in a group home where he would receive constant monitoring, live in a structured environment, and be allowed to finish high school. Following the hearing, the court in its order specifically directed that the social worker provide unsupervised visitation between Cynthia and Ely. The court recognized the importance of honoring Ely's desire to maintain visits with Cynthia even though Cynthia did not always consistently visit Ely or pursue services during his years as a dependent. The court properly assessed all relevant factors and determined that placing Ely in Cynthia's care was not the most appropriate option at this time. Instead, maintaining Ely's placement in a group home will provide him with some sense of permanency and stability that he deserves to have in his final years as a minor while allowing him to maintain contact with Cynthia until he reaches the age of 18. The court did not abuse its discretion. (See § 366.3, subd. (e).)
DISPOSITION
The order is affirmed.
WE CONCUR: HALLER, Acting P. J., AARON, J.