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Los Angeles Cnty. Dep't of Children & Family Servs. v. E.R. (In re Marilyn Z.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 10, 2012
B234399 (Cal. Ct. App. Jan. 10, 2012)

Opinion

B234399

01-10-2012

In re MARILYN Z. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.R., Defendant and Appellant.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule

(Los Angeles County Super. Ct. No. CK61354)

APPEAL from an order of the Superior Court of Los Angeles County. Terry T. Truong, Juvenile Court Referee. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.

E.R. appeals from orders at a Welfare and Institutions Code section 366.22 hearing, in the dependency proceeding concerning her children, Marilyn Z., Hugo Z., and Melody A. We affirm.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Facts and Discussion

Summary

This is an appeal from an order made at the section 366.22 18 month review hearing. At such a hearing, "[t]he court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a).)

At the hearing, which actually took place about 21 months after the children were detained, the court found that "[Mother] still is not in a position and in a place where I would feel comfortable returning the children to her. I need a better report from her therapist." The court also found that a section 366.26 hearing was not in the children's best interest because they were not proper subjects for adoption and because there was no one willing to accept legal guardianship, and chose a permanent plan of placement with their foster parents, "with a specific goal of returning home."

Mother's contention on appeal is that there is no substantial evidence for the finding that the children were at substantial risk of detriment if returned home. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) Finding such evidence, we affirm.

The petition

The section 300 petition at issue was filed on October 26, 2009, when Marilyn was 10 years old, Hugo was 5 years old, and Melody was 21 months. It was filed after a doctor who was treating Melody for an injury informed DCFS that the injury was likely caused by abuse. (A doctor appointed by the court later opined that Melody had only two small bruises which were typical for a toddler and which were not indicative of abuse. Thus, although the section 300 petition included an allegation that Melody's father, Freddie A., had inflicted an injury on Melody, the allegation was not sustained.)

Marilyn and Hugo had previously been dependent children of the court. In October of 2005, the court had sustained a petition alleging that they were endangered as specified in section 300, subdivisions (a) and (b), due to the long history of domestic violence between Mother and their father, Jorge Z., and due to other violent altercations Jorge Z. had had, one with the children's pregnant cousin, and one with an acquaintance of Mother's, this last altercation involving a stab to the face with a ballpoint pen, in the children's home, while the children were present.

In the earlier dependency, the children remained with Mother, since Jorge Z. had been arrested and was out of the house. The case was later closed.

Jorge Z. seems to have been incarcerated throughout this dependency. Neither father is party to this appeal.
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In this case, the children were detained and placed in foster care on approximately October 23, 2009. Adjudication of the petition was delayed until April 1, 2010, in large part due to the need for a medical evaluation of Melody's injury.

On that date, the petition was sustained as amended under subdivisions (b), (j), and (g). The sustained factual allegations were that Mother had physically abused Marilyn by striking her with a shoe or pulling her hair, and had physically abused Hugo by hitting him with a belt on his feet or his body, and that Mother's companion, Freddie A. (Melody's father) had abused Hugo by pushing or throwing him against a wall, and that Mother knew or should have known about this abuse and failed to protect the children. As to Marilyn and Hugo, the petition was also sustained under subdivision (g), on allegations that their father, Jorge Z., had failed to provide for them.

Mother's compliance with reunification services

In April 2010, when the petition was adjudicated, Mother was ordered to complete parenting classes and individual counseling to address child safety and protection and case issues.

By the end of September, Mother had not participated in either program despite having received many referrals from DCFS. She enrolled in one program, but did not show up for her first appointment, and said that she had enrolled in another program, but could provide no details to DCFS. She moved to San Francisco and claimed she could find no programs there. Further, DCFS reported that on July 26, 2010, police had responded to a report of an assault at Mother's home and found that Freddie A. had handcuffed Mother when she threatened to leave him. Police also learned that earlier in July, Freddie A. had threatened Mother with a screwdriver. Mother was uncooperative with police and with the domestic violence advocate.

DCFS also reported that in April, when the children were visiting an aunt, Mother and Freddie A. took Melody, and when the aunt confronted them, Freddie A. threatened her with a knife, in Mother's presence.

Mother visited inconsistently. In August, the children were placed with a maternal aunt in Sacramento. Mother called occasionally but told the children to say that she called every day.

Freddie A. was arrested in August 2010, apparently on a parole violation, and remained incarcerated during the remainder of the dependency.

At the November 2010 review hearing, the court found that Mother's compliance was minimal.

DCFS's January 2011 report is much more positive. Mother had moved back to Los Angeles. She had enrolled in parenting classes in October and had begun counseling in early November. She had attended 5 therapy sessions and 3 (of 12) parenting classes. Her therapist reported an "eagerness to improve." Mother told DCFS that she found the classes helpful and easy, and that she was angry at herself for not starting classes sooner.

The children were still placed in Sacramento, and Mother did not visit often, although she tried to visit twice a month. The caregiver, an aunt, reported that the children had behavior problems. The children, especially Marilyn, said that they wanted to return home. DCFS recommended additional time for reunification services.

At the January 2011 hearing, the court found that Mother's compliance was partial, and set the section 366.22 hearing.

In May, DCFS reported that Mother had completed her parenting classes, and said that she had learned a lot and planned to continue classes. She had participated in 15 counseling sessions, but had missed 8 sessions, one due to illness and the remainder due to travel to Sacramento to see the children. Due to budget cuts at her program, individual therapy was no longer available to Mother, but group sessions were.

The children's caregiver reported that Mother was visiting more often, and that mother had "changed drastically." She was more caring and appropriate with the children. However, the children were having some trouble in school, had behavior problems, and were each receiving therapy. The caregiver reported that the children were too much for her to handle. The children were moved to Los Angeles and placed in separate foster homes.

DCFS reported that Mother had a job and an apartment, had "demonstrated a willingness to change," and had made "remarkable progress" in a short time. DCFS had liberalized her visits with Marilyn to unmonitored visits. However, DCFS recommended termination of reunification services, given Mother's late start.

In June, DCFS again reported: Mother was "focused, motivated, and driven by love for her children." Mother's visits had been liberalized to overnight weekend visits, due to the children's desire to be with their mother. No problems had been reported with any of the visits, and the children returned to foster care content, but sad. Marilyn and Hugo constantly asked the social worker when they were going home. Melody was nonverbal, but the social worker reported that she appeared to have a good bond with her mother and was comfortable and content in her presence.

Mother's home was clean, well-organized, free of safety hazards, and had ample space for the children.

However, Mother's therapist reported that Mother's attendance was inconsistent, and that Mother became easily overwhelmed. She appeared depressed and needed more support and more therapy to address poor judgment and choices.

The section 366.22 hearing took place on June 28, 2011. At that time, the court made the order summarized above.

Discussion

We find substantial evidence for the juvenile court's ruling. Mother had made significant progress, but that alone does not decide the case. The question before the court was the risk of detriment to the children, not compliance with the case plan.

As Mother argues, she had completed her parenting class and participated in therapy, and had trouble-free overnight visits. She was committed to her children, and they wanted to be with her. However, she had been attending therapy for a relatively short while, especially given the repeated problems with violence and violent companions which had led to the dependency. Further, these children had been through multiple placements. They were manifesting various problems, and were in therapy. All of this is substantial evidence for the juvenile court's finding of detriment, and that return to Mother would have been premature.

Disposition

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J. We concur:

MOSK, J. KRIEGLER, J.


Summaries of

Los Angeles Cnty. Dep't of Children & Family Servs. v. E.R. (In re Marilyn Z.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 10, 2012
B234399 (Cal. Ct. App. Jan. 10, 2012)
Case details for

Los Angeles Cnty. Dep't of Children & Family Servs. v. E.R. (In re Marilyn Z.)

Case Details

Full title:In re MARILYN Z. et al., Persons Coming Under the Juvenile Court Law. LOS…

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

Date published: Jan 10, 2012

Citations

B234399 (Cal. Ct. App. Jan. 10, 2012)