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In Re K.M., A Person Coming Under the Juvenile Court Law. v. L.M

December 7, 2011


(Super. Ct. No. JD228844)

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

In re K.M. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Mother appeals from the juvenile court's orders terminating her parental rights and ordering a permanent plan of adoption as to minor K.M. (Welf. & Inst. Code, § 366.26.)*fn1 Mother contends that the sibling relationship and beneficial parental relationship exceptions to adoption apply. We disagree and affirm.


On December 18, 2008, Sacramento County Department of Health and Human Services (the Department) filed section 300 petitions as to two-year-old K.M. and her 10-year-old half brother, S.M. (collectively, the minors). The petitions alleged that mother had used excessive corporal punishment on S.M., and may have inflicted bruising on K.M.*fn2 Mother had been charged with a violation of Penal Code section 273a, subdivision (b) as a result of the injuries inflicted on S.M.

According to the December 19, 2008 detention report, S.M. said he was afraid of mother, who was mean to him and hit both minors. S.M. had lived with his father (So.M.) from the time he was two months old until So.M. was jailed in 2008.*fn3 Mother smoked marijuana in front of S.M. The minors were placed in the Children's Receiving Home.

Mother denied substance abuse. She had sole legal and physical custody of S.M. She admitted once using corporal punishment on S.M., but denied using it on K.M. She believed she had done nothing wrong.

The jurisdiction/disposition report for the January 15, 2009 hearing recommended out-of-home placement for the minors with services for the parents.

When she was interviewed January 8, 2009, mother still denied hitting K.M., but admitted hitting S.M. because he had stolen $50 and mother's Play Station 2 from her. Mother admitted smoking marijuana, but denied any other recent substance abuse. Mother tested positive for marijuana in late December 2008, and missed five scheduled drug tests. She was scheduled for an alcohol and other drug (AOD) assessment.

K.M. was withdrawn and sullen at the Children's Receiving Home, and S.M. was misbehaving there. S.M. had demonstrated defiant behavior, was aggressive toward other children, called staff foul names, was involved in incidents of property destruction, and engaged in inappropriate sexual conduct, such as mimicking masturbating in front of other children when prompted by a peer. Mother reported that he had been diagnosed with Attention Deficit Hyperactivity Disorder.

The minors saw each other approximately twice a week at the Children's Receiving Home. The report did not state the specific nature of these contacts. However, S.M. expressed affection for K.M. and stated they had a good relationship and played well together.

An addendum report filed February 13, 2009 stated that S.M.'s paternal aunt and the maternal grandmother had been approved for placement. The paternal aunt and the maternal grandmother both indicated a willingness to accept both minors, but S.M. preferred placement with the paternal aunt. The Department recommended placing K.M. with the maternal grandmother and S.M. with the paternal aunt.

On May 27, 2009, the juvenile court held a contested jurisdiction/disposition hearing. The court sustained the section 300 petitions as modified and adopted the recommended findings and orders, including the separate placements of the minors. K.M. was placed with the maternal grandmother. S.M. was placed with the paternal aunt.

The minors remained in separate placements until August 27, 2009. On that day, the juvenile court ordered that both minors be returned to mother. K.M. was close to three years old and S.M. had just turned 11. The progress report filed August 27 stated that mother had found stable housing, had resumed her former employment as a Greyhound bus driver, was doing individual and substance abuse counseling, had completed anger management and parenting programs, and was drug testing negative.*fn4 Mother was visiting both minors regularly; since early July she had been authorized three unsupervised visits per week with K.M. and two overnight visits with S.M. Mother would take the minors to the park, swimming and other age-appropriate activities. K.M. appeared happy and calm in mother's presence. The minors were doing well in their respective placements, although S.M. was still attached to So.M. So.M.'s probation had been revoked, and he had done little if anything to fulfill his case plan.

An in-home review report dated November 18, 2009 recommended terminating So.M.'s services and offering conjoint counseling for mother and S.M. K.M. appeared to be thriving in the mother's care. She had bonded with mother since her return on August 27 and mother's parenting skills had improved. K.M.'s development was normal. S.M. had behavioral problems at home and at school. He was slowly adjusting to the mother's care, but preferred placement with both parents. He was experiencing complications in school settings, which resulted in two suspensions. The minors had a close relationship and S.M. was very helpful with K.M. Mother had continued to participate in services, while So.M. had done little in the prior six months and may have moved to Louisiana to avoid incarceration.

The November 18, 2009 report stated that mother had been involved in a serious car accident on November 1, 2009, but was not at fault. This information turned out to be only partially accurate.

On December 3, 2009, a permanency hearing was conducted, at which the juvenile court ordered another AOD assessment and drug testing for mother.

An addendum report filed January 6, 2010 stated that on November 5, 2010, a social worker found out the true cause of mother's accident.*fn5 The report stated that the mother's accident was the result of mother driving while "heavily intoxicated." She was driving two adult passengers, who were also intoxicated. Mother drove the vehicle the wrong direction on a freeway, sideswiped one vehicle and collided into another. The minors were not with her at the time. She had lied to the social worker about the true nature of the accident. Mother tested negative on December 1, 2009, but also had three "administrative dirty tests."

On December 30, 2009, mother told a social worker that she was out of state and refused to disclose her location. She stated she would be back for the next court hearing. On December 31, 2010, a social worker spoke to mother by phone. Mother acknowledged that she was aware of the court order to complete an AOD assessment, but she had been out of state caring for her terminally ill father. The maternal grandmother and the minors were with her. S.M. had not attended school since December 8, 2009.

On January 4, 2010, a protective custody warrant on behalf of both minors was issued. The exact whereabouts of mother, the maternal grandmother and the minors were unknown.

As of January 5, 2010, a $100,000 warrant for failure to appear was pending for mother's arrest for felony violations stemming from the accident.

On January 11, 2010, the Department filed section 387 petitions alleging that mother had not complied with court orders and had absconded with the minors on or around December 30, 2009.

The January 14, 2010 detention report stated that mother had left California supposedly to care for her ailing father, and had refused to disclose her location.*fn6 The maternal grandmother had also avoided the Department. In a telephone conversation on January 12, 2010, mother told the social worker she was back in town and ready to give herself up.

On January 19, 2010, the juvenile court held a detention hearing, at which the court ordered the minors detained.

On February 11, 2010, the court granted the Department's motion for leave to file first amended section 387 petitions. The amended petitions alleged the facts of mother's accident, her current incarceration for violation of Vehicle Code section 23153, subdivisions (a) and (b), and the likelihood that she would receive a prison term.

The jurisdiction/disposition report for the February 11, 2010 hearing recommended out-of-home placement of the minors, with additional services for mother but not for So.M.

Mother claimed she did not remember the accident and only admitted she had a "hot toddy" beforehand. Because mother's blood-alcohol content after the accident was 0.20 percent, multiple victims were injured, and mother was out on bail on a pending felony charge when the accident occurred, the prosecutor indicated she was likely to recommend prison. Mother had not completed the AOD assessment and had not drug tested since the first week of December 2009. She and the maternal grandmother (with whom the minors were now living) had not been honest with the social worker. S.M. said he had missed two weeks of school while he was with mother and the maternal grandmother in Ohio.

At the February 11, 2010 prejurisdictional status conference, which was also a permanency hearing as to K.M., the parties submitted on the Department's reports. The juvenile court sustained the allegations of the first amended section 387 petitions and made the recommended findings and orders. K.M. was ordered removed from mother's custody and was placed in a foster home. S.M. was placed in the same foster home. Additional reunification services were ordered for mother. While in foster care, K.M. was doing well, although she had occasional tantrums and often questioned when she was going home to mother. The minors had a good relationship, and S.M. was very helpful in caring for K.M. while in the home.

In March 2010, K.M. started weekend visits with E.M. and Er.M., who had been approved as non-related extended family members (NREFMs). E.M. had been K.M.'s childcare provider since K.M. was two years old and had cared for ...

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