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In Re G.M., A Person Coming Under the Juvenile Court Law. v. J.H

January 25, 2011

IN RE G.M., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
J.H., DEFENDANT AND APPELLANT.



Super. Ct. No. JD229644

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

In re G.M. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, the mother of the minor, appeals from the juvenile court's order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 She contends that her due process and statutory rights were violated when the juvenile court ruled on her request for modification in her absence without proper notice. We agree with this contention, rendering it unnecessary to reach appellant's other claim. Accordingly, we shall reverse the order terminating parental rights and remand the matter for a hearing on appellant's request for modification.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2009 a dependency petition was filed on behalf of the Sacramento County Department of Health and Human Services (the Department) concerning the 10-month-old minor, which, as later amended, alleged appellant had "a substance abuse problem dating back to at least 1997," she tested positive twice for methamphetamine in March 2009, marijuana was found in her home, and the minor tested positive for methamphetamine at the time of her removal. It was further alleged that, in 2001, the minor's three half siblings had been adjudicated dependents of the court based on appellant's substance abuse, and her parental rights to two of these children were subsequently terminated.

Although appellant initially was inconsistent in attending visitation, she acted appropriately at the visits that did occur and was assessed as having a positive bond with the minor. Nonetheless, the social worker recommended against offering appellant services, based on her belief that appellant could not rehabilitate from her substance abuse problem in time to reunify with the minor.

In June 2009 the juvenile court sustained the allegations in the petition and denied appellant reunification services, based on her chronic substance abuse and her failure to reunify with her other children. (§ 361.5, subd. (b)(10), (11) & (13).) The minor's father was granted services. A few days later, the minor was moved to a foster-adopt home to provide permanence in the event that reunification efforts failed.

In November 2009 appellant filed a request to modify the juvenile court's previous order, seeking reunification services. She alleged she had not used drugs since March 2009, was living in a shelter program, and was attending substance abuse counseling and 12-step meetings. The juvenile court set the matter for a hearing.

Appellant did not appear at the hearing on her modification request, which was set on the same date as the six-month review hearing. Noting that appellant's failure to appear for the hearing was "cause for concern" as to her ability to meet the minor's needs and to "continue to stay on track," the juvenile court found it would not be in the minor's best interests to offer appellant reunification services. At the same hearing, the court terminated the father's services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor.

While the section 366.26 hearing was pending, appellant filed another request for modification, again seeking reunification services. She alleged, in part, that she had not used drugs for more than a year, was fully compliant with the drug court program, was attending 12-step meetings, and had stable housing. She attached documentation and pictures to verify these assertions. Appellant alleged that offering her services would be in the minor's best interest because appellant had achieved stability and the minor responded "in a very positive manner" to visits with her. The juvenile court set the matter for a hearing on the date set for the section 366.26 hearing.

According to the social worker's report for the section 366.26 hearing, appellant had two-hour visits once per month with the minor. The social worker had observed a recent visit, during which the minor was "engaged" the whole time but was happy when reunited with her foster mother. Later reports stated that the minor spent the first half of the visit "more focused on playing with the toys than interacting with [appellant] or [the maternal] grandmother" and that she separated "quite easily" from appellant at the end of the visit. The social worker characterized the visit as "more of a 'playdate' interaction than a parent-child interaction." Meanwhile, the minor "appear[ed] to have developed a close relationship" with her foster parents.

Appellant was present on the date scheduled for the section 366.26 hearing. Her attorney described the evidence he would present to establish changed circumstances and stated he hoped to demonstrate that there was a bond between appellant and the minor by "evaluat[ing] the previous visitations." The juvenile court stated that it was going to allow appellant to call witnesses at the hearing on her modification request prior to the section 366.26 hearing, but that it did not see "much evidence with regard to the best interest." In addition to setting a trial date, the court set the matter for a readiness conference and instructed appellant's attorney that he would need to present "a pretty well-developed offer of proof" regarding his witnesses' testimony. Although the reporter's transcript does not reflect that the court ordered appellant to be present at either ...


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