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In re S. E. et al., Persons Coming Under the Juvenile Court v. P. E

November 30, 2010


The opinion of the court was delivered by: Robie, J.

In re S.E.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

P. E., mother of the minors, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 395.) Appellant challenges findings made at the permanency planning hearing, arguing there is good cause to grant her relief from the requirement of filing a petition for extraordinary writ to address those issues. (Cal. Rules of Court, rule 8.450.) Appellant further contends that the court erred in denying her petition for modification and that reversal is required to provide proper notice pursuant to the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We affirm.


Two-year-old Pa. E. and eight-month-old S. E. were removed from appellant's custody in March 2008 due primarily to appellant's mental health issues which led her to neglect the minors.*fn2 The minors' father was in custody. Subsequent investigation revealed that domestic violence and substance abuse were also issues in the home. The minors showed significant physical and behavioral effects of neglect.

The court adopted a reunification plan which required appellant to demonstrate consistent stable behavior, and to participate in therapy, a domestic violence program, a parenting class, a substance abuse assessment, and psychotropic medication monitoring. Appellant agreed to attend drug court. At the six-month review, appellant and the father were living together again although appellant previously said she was filing for divorce and there was a no-contact order in effect. Neither parent was fully compliant with the service plan; however, appellant was participating in some of the services. The court ordered further services for both parents as recommended by the Sacramento County Department of Health and Human Services (the department).

By the 12-month permanency review hearing in August 2009, appellant was generally compliant with the service plan but her progress was superficial and she did not acknowledge that domestic violence in the home had affected the minors. Appellant said she had documentation from her doctor that she no longer needed psychotropic medication or counseling but did not provide the documentation to the social worker.*fn3 Appellant was having difficulty managing all three minors at visits. Appellant had filed a police report following a incident of domestic violence with the father in May 2009. The father was later arrested for the incident. Appellant had not been forthcoming about the recent domestic violence to her therapist or the social worker. The social worker recommended termination of services. At the permanency hearing, which occurred 17 months after the minors' removal, the court ordered appellant's services to continue to the maximum period of 18 months; directed the department to increase the frequency of visitation and refer appellant for additional therapy; and terminated services for the father, who remained in custody.

The report for the permanency planning hearing stated expedited referrals for the therapy ordered at the permanency hearing were made and the length of visits increased. Appellant continued to have difficulty managing the minors' behavior in visits and had the grandparents present at one visit although they were not approved for visitation and their presence was a violation of visit rules. Appellant had completed most services but still had not provided the social worker proof of her medical evaluation and had not benefited from the services provided to her.

At the hearing, the social worker confirmed he made the therapy referrals which were intended to improve appellant's ability to control the minors at visits. The social worker said there were scheduling problems with the interactive therapy and concerns from the service provider that the therapy was not appropriate because there was no plan to return the minors to appellant within 10 weeks. The social worker testified appellant and the minors were on a waiting list for joint therapy. The social worker described appellant's continuing problems in visits and failure to abide by visit rules by having unauthorized people come to visits. After argument, the court stated it would not make a finding reasonable services were not provided based on the lack of completion of the interactive and conjoint therapy that had been ordered to strengthen the parent-child relationship rather than to effect reunification. The court noted appellant had been provided a wealth of services, yet violated visit rules after she was given a second chance. The court expressed concerns that appellant continued to be in a relationship with the father which was marked by serious violence. Based on the evidence and the fact that more than 18 months had elapsed, the court adopted the recommended findings and orders terminating services.

Appellant filed a notice of intent to file a petition for extraordinary writ. Five days before the petition was due to be filed, counsel for appellant filed a motion to be relieved for the limited purpose of allowing appellant to file a writ petition in pro. per. Counsel had determined there were no legal grounds for filing such a petition and had declined to do so. Appellant had asked to proceed on her own. The record does not disclose that appellant had notice of the motion and she was not present at the hearing when the court granted the motion four days prior to the date the petition was due. Appellant did not file a petition and the case was closed.

The report for the section 366.26 hearing stated appellant continued to have difficulty interacting with all three minors at visits although visits did have positive aspects. The report recommended terminating parental rights for S. E. and Pa. E. who were considered generally adoptable. The father remained in custody.

Appellant filed a petition for modification seeking placement of the minors or renewed services. She alleged circumstances had changed because she had filed for divorce from the minors' father, continued to have loving visits with the minors, and maintained a job and a home. She further alleged she desired to move on from her domestically violent past to a happy and healthy future. Appellant alleged the proposed order ...

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