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Los Angeles Cnty. Dep't of Children & Family Servs. v. Jeana P. (In re Brittany B.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 2, 2012
B234161 (Cal. Ct. App. Feb. 2, 2012)

Opinion

B234161

02-02-2012

In re BRITTANY B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JEANA P., Defendant and Appellant.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Arezoo Pichvai 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. CK52983)

APPEAL from orders of the Superior Court of Los Angeles County, Stanley Genser, Referee. Affirmed.

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

Arezoo Pichvai for Plaintiff and Respondent.

INTRODUCTION

Jeana P., mother of Brittany B. (12 years old) and Brianna B. (11 years old) appeals from the orders of the juvenile court denying her petition for modification (Welf. & Inst. Code, § 388) and terminating her parental rights to the children. (§ 366.26.) We affirm.

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

FACTUAL AND PROCEDURAL BACKGROUND

1. The dependency

This is the second time this family has been before the juvenile court. The first time, in 2003, the children were removed because of Jeana's abuse of amphetamines. The family was reunited in 2004.

The current dependency commenced during a parole compliance search of Michael O., the father of mother's younger two children, Joshua O. (8 years old) and Teresa O. (6 years old). The police called the Department of Children and Family Services (the Department) because Jeana's house was filthy, with dog feces smudged on the bedroom carpets, beer cans scattered in the maternal grandmother's bedroom, metal lying exposed in the front yard, and drugs and drug paraphernalia on a dresser. Concluding the house was "clearly uninhabitable for children," the Department detained Brittany and Brianna along with their half siblings. Jeana did not take responsibility for the pellet gun and marijuana pipe in her bedroom or for the condition of the house. She admitted using methamphetamines three days earlier. The children were unkempt and dirty, and had matted hair. Brittany did not want to be interviewed, but repeated that she wanted to go to her aunt's house. The Department removed the children and placed them in foster care.

Joshua and Teresa were eventually placed in guardianship with their maternal grandfather at around the time adoption was selected for Brittany and Brianna. Joshua and Teresa are not parties to this appeal and Jeana does not challenge any rulings with respect to Joshua and Teresa in this appeal.

The juvenile court sustained a petition and declared Brittany and Brianna dependants because of, inter alia, Jeana's decade-long history of substance abuse, allowing a maternal aunt who is a drug abuser to live on the property, and the filthy house with hazards including drugs, drug paraphernalia, and pellet guns.

At the dispositional hearing, the juvenile court removed the children from Jeana's custody (§ 361, subd. (c)(1)) and ordered reunification services for her. Brittany and Brianna were initially placed in the home of their paternal grandmother, Helen B.

2. The reunification period

Jeana had consistent overnight and weekend visits with the girls. Brittany and Brianna were "very close to their mother" and had a difficult time when visits ended. The girls liked being with Jeana and had fun with her. The caregiver observed that Jeana had "built a great relationship with her daughters." Brianna was certain that she wanted to go home to Jeana, whereas Brittany stated both that she wanted to go home and that she wanted to visit her aunt Denise C.

Jeana had two unexcused, missed drug tests and did not participate in individual counseling to address case issues, as ordered by the court. Also, Jeana was arrested in May 2009 for driving with a suspended license and under the influence of alcohol or drugs, and in March 2009 for burglary.

The social worker determined in the fall of 2009, given the severity of Jeana's 15-year history of abuse and her arrests, that Jeana required a more structured and intensive substance abuse treatment program with specialized individual counseling. Her participation in her case plan did not appear to have resulted in significant change in her behavior.

The juvenile court granted Jeana an additional six months of reunification services, and in October 2009 granted the Department discretion to liberalize visits to unmonitored day visits as long as Jeana continued to demonstrate sobriety through random testing. Jeana and the children enjoyed overnight and weekend visits. The girls were very close to Jeana. In January 2010, the girls both stated they liked visiting with Jeana and wanted to live with her.

However, Jeana was arrested again in May 2010 for being under the influence of drugs. She tested positive for methamphetamines. She admitted to the arresting officer that she had used methamphetamines four days earlier, but to the Department she both denied having used drugs recently and admitted using. She blamed her use on extreme stress brought on by her brother's recent death and her mother's recent incarceration. The social worker explained in a last minute information for the court that Jeana appeared to be in denial about the seriousness of her drug use. Brittany confided to the social worker in May 2010 that she saw a pipe at the maternal grandmother's house while visiting Jeana. The social worker was concerned that Jeana was exposing the children to an unsafe environment. The Department recommended that Jeana enter an inpatient substance abuse program.

Jeana entered a residential treatment facility in June 2010. After a probationary period, the children saw Jeana at her program. The girls appeared happy to visit Jeana. Brittany reported the visit was " 'ok' " but asked whether she could visit her paternal aunt Denise C. in central California. Jeana did not want to give up her Sunday visits so that the girls could spend a couple of weeks with Denise.

Meanwhile, Brittany and Brianna visited with their half siblings and the caregivers were willing to facilitate sibling visitation.

In July 2010, the juvenile court terminated reunification services and set the section 366.26 hearing to select a permanent plan for the girls. In so doing, the court stated that Jeana was "basically starting all over again. This wasn't just a small slip. This was a significant lapse. The compliance has been a struggle throughout the entire case." The court allowed the children to travel to visit Denise C. "so long as [the Department] thinks it is appropriate."

By November 2010, Brittany and Brianna had been placed with Denise C. The girls telephoned Jeana at least once per week. The Department reported that "[i]t is very likely that the children Brittany and Brianna will be adopted." Denise C. and her husband were interested in adopting them.

3. The section 388 petition for modification

After her release from her in-patient facility, Jeana filed a petition (§ 388) seeking return of the children to her care, or alternatively, reinstatement of reunification services and unmonitored visits. As changed circumstances, Jeana explained that she had completed her in-patient program and was in aftercare, had obtained a sponsor, and was attending Alcoholics Anonymous meetings three times per week. She believed the change in orders would be in the children's best interest because they had lived with her for most of their lives, had weekend visits until her relapse, and since then have had weekly contact.

The Department did not believe Jeana had "made substantial progress sufficiently to reinstate her family reunification services." She completed the in-patient portion of her drug treatment program in just five months which, the social worker opined, was not sufficient time to produce longstanding sobriety given her long history of drug use. Although Jeana tested negative for drug use between January and May 2011, the only aftercare in which she participated was weekly Narcotics Anonymous meetings. Also, Jeana resisted contacting the Department even to notify the social worker of her whereabouts. Meanwhile the children had adjusted to their current caregivers and were very happy to visit with their half siblings. Brittany expressed concern several times that she was afraid, if she were returned to Jeana, that she would only be taken away again.

Interviewed separately, Brittany and Brianna each stated they wanted to be adopted by Denise C. Brittany explained that she liked living with Denise, liked playing the clarinet, liked her peers and friends at school, was on the honor roll, and loved her drama class. She expressed hesitancy about reunifying with Jeana because she did not want to have to be placed in foster care again. She felt secure in Denise's home. Brittany did inquire about contact with Jeana and learned from the social worker that it would be allowed, although the contact would be limited given the distance. Brianna, who appeared to have insight into what adoption meant, explained that she wanted to be adopted by Denise, with whom she felt at home, and wanted to be wherever Brittany was. Brianna had more interest in the possibility of returning to Jeana's care, but understood the circumstances that prevented return. Brianna also inquired about contact with Jeana. The social worker determined that the girls were thriving in Denise's care and had a positive bond with the prospective adoptive parents.

4. The hearing on Jeana's section 388 petition for modification and under section 366.26

Brittany did not testify. Jeana acknowledged that Brittany had requested she be adopted by Denise and submitted that question to the court.

We reject county counsel's argument that Jeana forfeited all contentions that the juvenile court erred in terminating her parental rights to Brittany on the ground that she conceded if Brittany wanted to be adopted, Jeana would support that decision. Forfeiture is the loss of a right by the failure to timely assert it. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Jeana "submitted" the question of whether the child should be adopted to the juvenile court, she did not state that she was relinquishing her right to retain legal custody to the child.
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Brianna testified that she wanted to live with her aunt and her mother. Her second choice was Denise, where she had been for a year. She testified that the reason she told the social worker she "maybe" wanted to be adopted by Denise was because she wanted to live with Jeana. It would feel "horrible" to Brianna not to be able to see Jeana or Joshua and Teresa anymore. However, Brianna did not want to live with Jeana if Brittany remained with Denise.

Jeana's friend described Jeana's progress in drug rehabilitation. The friend testified that she saw Jeana at Narcotics Anonymous meetings twice a week where Jeana would share with the group. Jeana also participated in sober activities, and the two would telephone three to four times a week.

Jeana testified she completed two in-patient drug treatment programs and did not complete one out-patient program. Her first attempt at sobriety during this dependency was unsuccessful because she did not have a sponsor and her attendance at meetings was "bad." At the time of the hearing, the only aftercare she was involved in was to attend Narcotics Anonymous meetings twice a week, and to follow the 12-step program. She intended to revisit step number four. She maintained contact with one of the counselors at her treatment facility, although her contact with her sponsor decreased over time because the sponsor was an alcoholic and Jeana is a drug abuser. Jeana had yet to find a new Narcotics Anonymous sponsor.

The executive director of Jeana's in-patient facility testified that the in-patient program lasts six to nine months, and sometimes a year. Jeana completed the program in five months and had met all of the goals for completion, including having support and a safe place to go at the end of treatment, participating actively in a 12-step program, and keeping in contact with the facility. Jeana was advised to live in a sober-living home after treatment but she chose to live with her sister. The executive director would not have recommended Jeana live with her sister had she known that Jeana's mother, also a drug abuser, was living there too. The executive director also testified that if Jeana did not see a sponsor for two or three months, then she was not following her discharge plan. Jeana was told to attend at least three meetings a week but if she were unemployed, then she should be attending meetings daily.

The juvenile court denied Jeana's section 388 petition finding no change in circumstances and that a modification of the previous order was not in the children's best interest. Turning to the section 366.26 ruling, the juvenile court found by clear and convincing evidence that both Brittany and Brianna were adoptable. Next, the court found by clear and convincing evidence that Jeana had not carried her burden to demonstrate application of either the parental-relationship or the sibling-relationship exceptions to adoption. The court found no evidence that the detriment to the girls of terminating Jeana's parental rights would outweigh the benefit they gain from the permanence of adoption. The court also found no evidence the nature and frequency of sibling visitation would decrease if parental rights to Brittany and Brianna were terminated, as both new families have encouraged sibling contact as much as possible and there is no hint of animosity between the families. The juvenile court terminated Jeana's parental rights to Brittany and Brianna and Jeana filed this appeal.

CONTENTIONS

Jeana contends that the juvenile court erred in denying her section 388 petition and in declining to apply the parental-relationship or sibling-relationship exceptions to adoption.

DISCUSSION

1. The juvenile court did not abuse its discretion in denying Jeana's section 388 petition.

A section 388 petition seeks to modify the status quo in a dependency case. "Under section 388, a parent may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that [(1)] there is a change of circumstances or new evidence, and [(2)] the proposed modification is in the minor's best interests. [Citations.]" (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)

A petition under section 388 is addressed to the juvenile court's sound discretion and on appeal, we will disturb the decision only on a clear abuse of that discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) " ' " [']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.' " [Citation.]' [Citations.]" (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095-1096.)

Turning to the first prong of the test under section 388, a change of circumstances, Jeana argues that she completed the residential treatment program in almost six months. Her aftercare entailed going to two meetings a week. She completed the 12-step program, and is currently redoing step number 4. Recognizing she has no sponsor, Jeana explained she had had one for eight months. She spoke with that sponsor every other day and remained in contact with her counselor from her residential facility. Jeana also emphasizes her "new outlook and attitude," in which she recognizes that treatment is necessary. Jeana compares her success in the residential program to her earlier failures in rehabilitation to argue that by the time of the hearing on the section 388 petition, circumstances had changed for the better.

However, the record shows that Jeana was not following her discharge plan. She only attended Narcotics Anonymous twice a week rather than the three times as required by the facility director. And, because Jeana was not employed, she should have been attending meetings daily. Jeana had not contacted her sponsor for some time. The juvenile court did not believe Jeana's explanation for not having a sponsor. We may not reassess that credibility finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Moreover, Jeana did not follow the recommendation to move to a sober-living home, instead living with her sister and the maternal grandmother, who Jeana admitted, abused drugs. Given Jeana's entrenched drug addiction and her history of relapse, her current failure to follow her discharge plan demonstrates no actual change of circumstances.

Turning to the second prong of the test under section 388, among the factors juvenile courts consider in determining whether a proposed change of order is in the children's best interest are: (1) "the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem;" (2) "the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been," and (3) "the strength of relative bonds between the dependent children to both parent and caretakers." (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)

Jeana has not demonstrated that reinstatement of reunification or return of the girls to her would be in the children's best interest. The problem leading to this dependency is Jeana's long history of entrenched drug addiction that is difficult to solve and has not been resolved. By her own admission, Jeana has attended three different treatment programs and relapsed twice already. This is a protracted problem and Jeana is not complying with her discharge plan. Further, it is not the case, as Jeana argues, that she did not cause harm to the children. These children have been constantly exposed to Jeana's and other people's drug use. Brittany was concerned when she saw a pipe at the maternal grandmother's house while visiting Jeana. Although it turned out that what she saw was probably a piece of a florescent light bulb, the point is that this young child was fully familiar with drug paraphernalia. Furthermore, Jeana had been arrested multiple times because of her drug use.

Comparing the strength of relative bonds between the dependent children to both parent and caretakers here, it shows that Brittany and Brianna are close to Jeana. However, they are also fully aware of Jeana's instability, frequently expressing the concern that if they return to Jeana's care, they will just be removed again. By comparison, the girls are happy with Denise. They are thriving in Denise's care and have bonded with their adoptive family. Understanding what adoption means, both girls have told the social worker they wanted Denise to adopt them.

Analysis of these factors only confirms the juvenile court's determination that it would not be in the girls' best interest to return to Jeana. In short, on this record, the juvenile court did not abuse its discretion in denying Jeana's section 388 petition.

2. The juvenile court did not err in terminating Jeana's parental rights.

At the permanency planning hearing, the juvenile court must order one of three dispositional alternatives, adoption, guardianship, or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) The Legislature has declared a strong preference for adoption over the alternative plans if the dependent child is adoptable. (Id. at p. 297.) Thus, the statute directs, if the court finds that the child is adoptable, "the court shall terminate parental rights unless" the court "finds a compelling reason for determining that termination would be detrimental to the child due to" one of the six delineated exceptions. (§ 366.26, subd. (c)(1) & (c)(1)(B).) Only if a compelling reason for applying an exception appears may the court select a plan other than adoption.

"The specified statutory circumstances -- actually, exceptions to the general rule that the court must choose adoption where possible - 'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.] At this stage of the dependency proceedings, 'it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.' [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Jeana does not challenge the juvenile court's finding that the girls are adoptable. Therefore, adoption is relatively automatic absent application of any statutory exception.

a. The parental-child relationship exception does not apply.

Jeana first espouses the so-called parent-child relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) This exception applies when the court finds that (1) "[t]he parents have maintained regular visitation and contact with the child and [(2)] the child would benefit from continuing the relationship." (Ibid.) Jeana bore the burden to show application of this exception. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)

In applying the parent-child relationship exception, courts "balance[] the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child." (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.) This balance must be considered in the context of any limitations the juvenile court has placed on visitation. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) "[I]f severing the existing parental relationship would deprive the child of 'a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.' [Citation.] In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 229; In re B.D., supra, at pp. 1234-1235.)

Even if there were a beneficial parent-child relationship, "[t]he juvenile court may reject the parent[s'] claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

On appeal, "[w]e determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.] The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. [Citations.]" (In re B.D., supra, 159 Cal.App.4th at p. 1235.)

Turning to the record here, it shows that Brittany and Brianna love Jeana and have had generally regular and consistent contact with her. However, the juvenile court found that this parental relationship did not benefit the girls enough to outweigh the benefit to them of the permanence of adoption. The evidence amply supports the determination. This parent-child relationship has been marked by instability caused by Jeana's repeated relapses, and her conduct that exposed the children to dangers. Brittany frequently expressed this instability, having stated her concern many times about the likelihood of being re-detained if she were returned to Jeana's care. Although Brianna testified she would feel "horrible" if she could no longer see Jeana, the child was assured that she would have limited contact with Jeana. Meanwhile, the girls unambiguously stated to the social worker independently of each other that they wanted to be adopted by Denise and were happy in Denise's care. They understood what adoption means. They are thriving in Denise's care emotionally, socially, and academically, and they have found the stability that a permanent adoptive home provides.

In re S.B., supra, 164 Cal.App.4th 289, cited by Jeana does not alter our conclusion. There, the record showed "[w]hen S.B. was removed from his care, [the father] immediately recognized that his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services, and maintained consistent and regular visitation with S.B. He complied with 'every aspect' of his case plan." (Id. at p. 298, italics added.) The father " 'consistently puts his daughter[']s needs and safety before his own.' " (Ibid.)By contrast, here, Jeana lost and regained custody of her children, tested positive for drug use after two drug-treatment programs, and failed to comply with her discharge plan. Each time Jeana did well, the children were returned to her care. Then she relapsed and the children were detained again. This is exactly the instability that Brittany was concerned about and that adoption is intended to overcome.

In sum, the evidence supports the juvenile court's conclusion that the parental-relationship exception to adoption did not apply because Jeana's relationship with the girls maintained during visitation did not benefit Brittany and Brianna sufficiently or significantly enough to outweigh the strong legislative preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

b. The sibling-relationship exception does not apply.

The other exception to adoption Jeana advocates is section 366.26, subdivision (c)(1)(B)(v): "There would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption."

The parent bears the burden of demonstrating that the exception under section 366.26, subdivision (c)(1)(B)(v) applies. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.) "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952, fn. omitted.)

The juvenile court uses a two step process in analyzing the sibling-relationship exception. First, the court determines "whether terminating parental rights would substantially interfere with the sibling relationship[.]" (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) It does this by "evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. [Citation.]" (Id. at p. 952.) Second, "[i]f the court determines terminating parental rights would substantially interfere with the sibling relationship, the court . . . weigh[s] the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (Ibid.)

Here, it is not disputed that the four half siblings have a relationship. Yet, the record contains evidence to support the juvenile court's finding that terminating parental rights to Brittany and Brianna would not substantially interfere with their relationship with Joshua and Teresa. The evidence shows that the four children maintained visits during the case. The visits were always positive. The children enjoy each other. More important, the caretakers have expressed the willingness to encourage sibling contact and the record contains no hint of animosity among caregivers, or any barriers to maintaining that relationship. Jeana suggests that where Joshua and Teresa are in a legal guardianship there is always the possibility that they will be returned to Jeana, with the result that the sibling relationship between the four children would "end." Such a possibility is not substantial evidence that the sibling relationship would end. Other than this conjecture, there is no evidence that the children would not be able to visit or maintain relationships with one another. The juvenile court did not err in concluding that the sibling-relationship exception to adoption did not apply here.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J. We concur:

CROSKEY, Acting P. J.

KITCHING, J.


Summaries of

Los Angeles Cnty. Dep't of Children & Family Servs. v. Jeana P. (In re Brittany B.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 2, 2012
B234161 (Cal. Ct. App. Feb. 2, 2012)
Case details for

Los Angeles Cnty. Dep't of Children & Family Servs. v. Jeana P. (In re Brittany B.)

Case Details

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

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

Date published: Feb 2, 2012

Citations

B234161 (Cal. Ct. App. Feb. 2, 2012)