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In Re F.H., A Person Coming Under the Juvenile Court Law. v. A.A. et al

December 20, 2011

IN RE F.H., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
A.A. ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. JD230082)

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

In re F.H.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A.A., the mother, and C.H., the father of the minor F.H. appeal from the juvenile court's orders terminating parental rights and denying mother's petition for modification. (Welf. & Inst. Code, §§ 395, 366.26, 388; unspecified section references that follow are to this code.) Mother contends the denial of her section 388 petition was an abuse of discretion, and the juvenile court violated her due process rights by failing to allow her to present a witness at the section 388 hearing. Father contends the juvenile court should have applied the beneficial parent/child relationship exception to adoption. Both parents join the other's brief. We affirm the judgment.

FACTS AND PROCEEDINGS

When F.H. was born in August 2009, mother was on hospital alert due to suicide attempts, substance abuse, a history of domestic violence with father, and the prior death of one of her children. Three of her children were adopted with the fourth in guardianship. Later that month, the minor was placed in protective custody and the Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition (§ 300) alleging mother's extensive child welfare history and a history of domestic violence. The minor was detained and returned to her parents two days later.

Mother has an extensive child welfare history. The minor's brother T.A. (born March 1995) was declared a dependent of the juvenile court in May 1998 when the child's one-month-old sibling A.R. died from asphyxiation after being discovered wedged between a wall and a mattress. Another dependency petition was sustained in December 1998, based on mother's substance abuse and domestic violence between mother and her boyfriend, and mother's physical abuse of T.A. and A.R. T.A. remained in foster care until his return to mother in June 2005.

In December 1998, the minor's half sibling J.V. (born March 1997) was adjudged a dependent child based on mother's history of domestic violence, physical abuse of A.R. and T.A., and A.R.'s death. Reunification services were terminated in September 1999, but the child was returned to mother in May 2000. A subsequent petition was sustained after mother failed to meet the medical needs of half sibling D.D. (born October 1999). Reunification services were not provided, pursuant to section 361.5, subdivisions (b)(3)-(6) and (b)(10).

Dependency petitions were sustained as to D.D. in November 1999 and January 2001 after D.D. was hospitalized in August 2000 due to severe dehydration and hypoglycemia. This life threatening condition was caused by mother's failure to feed D.D. for 24 to 48 hours. Reunification services were not provided, and mother's parental rights were terminated.

A dependency petition for half siblings Z.A. (born April 2004) and T.A. was sustained in January 2006 based on physical abuse and domestic violence. Reunification services were not offered and parental rights were subsequently terminated as to Z.A.

In an August 2009 interview, mother denied the physical abuse and domestic violence allegations, but admitted her substance abuse and child welfare history. Mother had used crack cocaine since she was 14, used drugs heavily after the death of A.R., and used marijuana before learning she was pregnant with the minor. Mother did not use drugs when pregnant, except when pregnant with her second son. Mother had been diagnosed with bipolar disorder and was placed on a section 5150 hold while Z.A. was in her care.

Father denied the physical abuse and domestic violence allegations in August 2009. He denied knowledge of the elements of mother's child welfare history which took place before they met. Father told the social worker he was considering moving out of the residence they shared to get custody of the minor.

Mother enrolled in the Birth and Beyond program in January 2009. The program's caseworker stated that mother was an "ideal client" who asked a lot of questions and did "above and beyond" what she was asked to do. The caseworker expressed concern over how mother treated the minor like she was a "toy doll." Mother was good with the baby at this age, because she could dress her up in "cute clothes" and comb her hair; the caseworker was concerned what would happen when the minor grew up and required more parental guidance.

The paternal grandmother expressed concerns about mother's mental health and that she failed to take her medications for bipolar disorder. She also observed the mother treated the minor like a "doll."

The minor was born three weeks premature, weighing 6 pounds, 4 ounces. She weighed 6 pounds, 2 ounces 13 days later, and was at her original birth weight nine days later. The minor was still under her expected weight when she was five weeks old. In light of mother's history of failing to feed one of her children, DHHS expressed "immense" concerns regarding the minor remaining in mother's care.

The minor was detained and placed with the paternal grandparents in September 2009. A doctor examined her almost a month after the placement, and concluded that the minor's weight "flattened out" in mother's care but "started to go way up" when she was placed with the paternal grandparents.

An October 2009 report related that mother did not exhibit symptoms after being taken off her psychotropic medicine. Seeing no medical reason to continue, mother's doctor discontinued the medication.

In November 2009, DHHS filed an amended petition (§ 387) reflecting the minor's failure to thrive under mother's care. The juvenile court dismissed the original petition and sustained the amended petition later that month. Reunification services were ordered for father, but denied to mother pursuant to section 361.5, subdivisions (b)(4),(10), and (11).

Mother filed a petition for modification (§ 388) in January 2010 seeking placement of the minor or reunification services. She alleged as changed circumstances: almost a year of sobriety, excellent participation in outpatient substance abuse services, her doctor's recommendation that she did not need medication for mental health problems, and having completed domestic violence and parenting classes. The juvenile court denied the petition in March 2010. Mother appealed, and we dismissed the appeal per In re Phoenix H. (2009) 47 Cal.4th 835. (In re F.H. (Mar. 21, 2011, C064668) [nonpub. opn.].)

The minor continued to reside with the paternal grandparents in Fresno as of the April 2010 permanency review report. Father once arrived at the paternal grandparents' home apparently intoxicated. He initially acted rudely and disrespectfully, and continued to raise his voice when the paternal grandmother would not let him hold the minor, refusing to leave until police arrived to escort him off the property. Law enforcement found father in possession of a small amount of marijuana, and arrested him.

The social worker reported that father had frequent, generally appropriate, and loving visits with the minor. One issue was that father would leave the grandparents' home to "hang out" with friends and family for much of the time, leaving the minor behind. Mother had monthly supervised visits with the minor. The paternal grandmother reported that the last visit was very appropriate and positive, but mother was easily frustrated in previous visits. The minor made excellent progress in the paternal grandparents' care.

A May 2010 addendum report stated that father had not participated in the counseling part of his services. DHHS recommended terminating father's services.

The juvenile court terminated father's services in May 2010.

The September 2010 selection and implementation report noted the paternal grandparents were interested in adopting the minor. The minor had a loving relationship with the paternal grandparents, and wanted for nothing in their care. Father would visit the minor for up to a week at a time, allowing him to bond with the minor.

The report for the section 366.26 hearing stated the parents continued to visit the minor once a month. Father would stay at the paternal grandparents' home and visit for multiple days. The paternal grandparents started an adoption home study, and were ...


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