Opinion
No. B169947.
11-25-2003
LESLY A., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Lesly A., in pro. per., for Petitioner. No appearance for Respondent. Lloyd W. Pellman, County Counsel, and Stephanie Jo Farrell, Deputy County Counsel, for Real Party in Interest.
By this petition for extraordinary writ, Lesly A., the biological mother of Kevin G. (born in 1992), challenges an August 28, 2003 order terminating her reunification services with Kevin and setting a Welfare and Institutions Code section 366.26 hearing to address the issue of legal guardianship of Kevin. (Further statutory references are to the Welf. & Inst. Code.) We deny the petition because Lesly A. fails to establish that the juvenile court erred or abused its discretion in removing Kevin from her custody.
FACTUAL AND PROCEDURAL BACKGROUND
Lesly A. (Mother) and Mario A. are the biological parents of Jordyy A. (born in 1994), Christian A. (born in 1996), and Kimberly A. (born in 1997). Mother and David G. are the parents of Kevin, but David has never appeared in these proceedings. From the time Kevin was one year old until 1997, Kevin lived with Mother and Mario, whom Kevin referred to as "Father." Mario viewed Kevin as his son.
Mother and Mario had a history of domestic violence. In 1996, Mario was arrested and spent 10 days in jail for hitting Mother. In 1995, Jordyy A. was declared a dependent of the juvenile court after Mother took him to a Mexican massage therapist whose treatment caused Jordyy to sustain spinal injuries. After five months in foster care, Jordyy was returned home and jurisdiction was terminated.
The instant proceeding was initiated in August 1997, after a pediatrician treating six-week-old Kimberly discovered that she had three fractured ribs that were several weeks old; the fractures could only have been caused by a sharp blow such as being struck by an automobile or abuse. The parents offered several explanations for Kimberlys injuries, including birth trauma and trauma when Mother held Kimberly too tightly during a physical confrontation with Mario, but the pediatrician did not believe that the parents explanations were possible causes of the babys injuries.
DCFS filed a petition, sustained in May 1998, asserting that all four of Mothers children were dependent children under section 300, subdivisions (a), (b), (e), (i) and (j). The children were detained and placed in foster care. At a May 1998 dispositional hearing, the court found that none of the children could be returned to Mother or Mario, who were then living separately and who continued to live separately throughout the course of these proceedings. Both Mother and Mario were denied reunification services but were ordered into counseling and afforded monitored visitation.
On September 23, 1998, the court found the children were likely to be adopted and terminated parental rights, but both Mother and Mario appealed and the order was reversed on May 20, 1999, on the ground that the finding of adoptability was not supported by substantial evidence. (In re Kevin G. (B125850) [nonpub. opn.].)
In December 1998, DCFS identified a maternal aunt and uncle living in Maryland, the C.s, as prospective adoptive parents for all four children and initiated proceedings under the Interstate Compact on the Placement of Children (ICPC). In January 1999, the maternal aunt, Mrs. C., came to California and visited with the children; Kevin and Christian resided together in one foster home, and Kimberly and Jordyy resided together in another foster home. At that time, Kevin was receiving counseling for adjustment disorder. In February 1999, Mrs. C. notified DCFS that she wished her home to be evaluated for adoptive placement of the children, but the Maryland agency could not approve her home and closed the ICPC proceedings because Mrs. C. was not a legal resident of the United States (even though she was married to a legal resident) and their two-bedroom apartment was too small to accommodate four more children. The Maryland agency also noted that Mr. C. had several charges related to driving under the influence of alcohol and his license was suspended for several months in 1997. After Mrs. C. obtained legal residency and a social security number in January 2000, the juvenile court ordered that the ICPC be reissued. In July 2000, the C.s moved to a larger home. The ICPC was completed and approved in October 2000. At that time, Mother and Mario had one-hour per week monitored visits with the children, which were going well. They also maintained almost daily telephone contact with the children.
After the court ordered that the children were to be placed with the C.s, the children were flown to Maryland in November 2000. Mother also went to Maryland and stayed with another relative for a week to assist with the childrens transition to their aunts home. After reports of some initial difficulty adjusting to their new home, the children appeared to a Maryland social worker to be doing well in January 2001. The juvenile court selected adoption as the permanent plan for the children and terminated parental rights on January 30, 2001, but on Marios appeal, we reversed the order terminating parental rights as to Kimberly, Christian and Jordyy on the ground that the order was not supported by substantial evidence that the children were likely to be adopted.
Mother did not appeal from the January 30, 2001 order terminating her parental rights, but the disposition on Marios appeal reinstated her rights to Kimberly, Jordyy and Christian. A footnote in our September 19, 2001 opinion stated: "Although we recognize that Marios appeal does not directly involve Kevin, we disagree with the departments position that Kevins situation is irrelevant to Marios appeal. The C.s were asked to adopt the children as a sibling group of which Kevin was a member." (In re Jordyy A. (B148007) p. 11, fn. 1.)
Beginning in October 2001, both Mother and Mario began telephoning the C.s with threats and insults because they did not want the C.s to adopt the children. In October 2001, Maryland closed the case for an adoptive home study when the C.s indicated they were no longer interested in adoption but only in legal guardianship or long-term foster care. At a section 366.26 hearing in January 2002, the court identified guardianship as the permanent plan for the children. Mother went back East to visit with the children in March 2002. After Mario found out about the permanent plan of legal guardianship, he had a better relationship with the C.s. In April 2002, the court ordered guardianship as the permanent plan for all four children and appointed the C.s as guardians. Mario appealed the order on the ground that the court improperly delegated to the C.s the right to determine whether he would be allowed visitation. In an unpublished opinion filed on April 2, 2003 (In re Jordyy A. (B159730)), we affirmed the order on the ground that the court determined that visitation was to occur and granted the parents visitation rights, delegating to the guardians the discretion to determine only the time, place and manner of the visitation.
Pending the prior appeal, and in February 2003, a California social worker visiting the children in Maryland was informed by Kimberly that her uncle had been sexually abusing her. A medical examination of Kimberly confirmed the sexual abuse. The children were removed from the home of their guardians and returned to California, where they were placed in foster care. In February 2003, DCFS filed a supplemental petition under section 387 and a section 388 petition for modification based on the allegations of sexual abuse of Kimberly by her guardian. On April 15, 2003, the juvenile court sustained both petitions and terminated the guardianship.
Meanwhile, on February 18, 2003, the court ordered reunification services for both Mother and Mario, who were to have monitored visits with the children as frequently as possible. In March 2003, Mother enrolled in a parenting course and both she and Mario stated that they wanted to regain custody of the children. A March 25, 2003 DCFS report recommended placement of Kimberly, Christian, and Jordyy with Mario; in order to place Kevin with Mario, who was not his biological father, DCFS was seeking a criminal history waiver with respect to Marios 1996 misdemeanor conviction for spousal abuse. DCFS did not recommend placement of the children with Mother because Mother had been aware that Jordyy and Kevin were physically abused by their uncle in Maryland but did not notify law enforcement or child welfare services; Mario, on the other hand, had visited the children in Maryland in December 2002 and had filed a physical abuse report against the uncle after Jordyy and Kevin disclosed the physical abuse to him.
On March 25, 2003, the court ordered Kimberly, Christian, and Jordyy "on a vacation with their father" pending the next hearing in April 2003. DCFS was granted the discretion "to allow Kevin to be on vacation with his [stepfather], Mr. A." Mario was also afforded unmonitored and overnight visits with Kevin, and Mother was afforded unmonitored and overnight visits with the children. In April 2003, Kimberly, Christian, and Jordyy were placed in Marios home under Family Maintenance Services; DCFS was ordered to provide permanent placement services for Kevin.
On May 8, 2003, Kevin was placed with Mother under DCFS supervision, but about a month later DCFS filed a section 342 subsequent petition under section 300, subdivisions (a), (b), (i) and (j), alleging that Mother used inappropriate physical discipline on the children by hitting them with a belt and a sandal and by leaving them home alone without any adult supervision. Kevin was detained in foster care, but on June 13, 2003, the juvenile court ordered that Kevin be detained with Mario. Mother was afforded monitored visits with the children, and by July she was visiting them once a week for two to four hours. In July 2003, Kevin told a social worker, "I want to go back with my mom but I like it here too, with my daddy and brothers."
On August 28, 2003, the court sustained the section 342 petition, as amended, under section 300, subdivisions (a) (physical harm) and (b) (failure to protect). Although Mother had been properly noticed for the hearing, she did not appear, and her attorney stated that Mother had not been in contact with her for the last few hearings. The court ordered that Marios three children were to remain placed with him under Family Maintenance Services, and Mother was afforded reunification services as to those three children. As to Kevin, who also remained placed with Mario, the court terminated reunification services for Mother and set Kevins case for a section 366.26 hearing on December 2, 2003, to address the issue of a legal guardianship with Mario.
On September 11, 2003, Mother, in propria persona, filed a notice of intent to file a writ petition, and on October 14, 2003, she filed her petition for extraordinary writ. The petition does not identify the order being challenged, stating only, "I want the custody of my son Kevin [G.]" DCFS filed an answer to the petition.
DISCUSSION
We agree with DCFS that the petition fails to comply with California Rules of Court, rule 39.1B(j), which requires that the petition summarize the factual basis for the petition and that petitioner attach applicable points and authorities. Accordingly, Mother fails to meet her burden of showing reversible error or any ground for relief. Our review of the record also fails to reveal any basis to vacate or set aside the August 28, 2003 order.
DISPOSITION
The petition is denied.
We concur: SPENCER, P. J., ORTEGA, J. --------------- Notes: We grant the request of real party in interest Los Angeles County Department of Children and Family Services (DCFS) to take judicial notice of two prior unpublished appellate opinions in this matter: In re Jordyy A. (B148007), filed on September 21, 2001, and In re Jordyy A. (B159730), filed on April 2, 2003. Our summary of the procedural background is taken primarily from those prior opinions.