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In Re A.S. et al., Persons Coming Under the Juvenile Court v. B.B

May 15, 2012

IN RE A.S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. ORANGE COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
B.B., DEFENDANT AND APPELLANT. IN RE AD.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. ORANGE COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
B.B., DEFENDANT AND APPELLANT.



Appeals from orders of the Superior Court of Orange County, Jane L. Shade, Temporary Judge. (Super. Ct. Nos. DP016447 & DP016448)

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

CERTIFIED FOR PUBLICATION

OPINION

(Super. Ct. No. DP016448)

(Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Request for judicial notice. Denied. Motion to augment record on appeal. Denied. Motion to take additional evidence. Denied.

INTRODUCTION

A.S. and her brother, Ad.S., now 10 and seven years old, respectively, have been dependents of the juvenile court system for more than four years. Long-term foster care was chosen as their permanent plan. Primarily because of their behavioral problems, no foster care placement has been successful, and the children have been living at an emergency shelter group home for over one year. The Orange County Social Services Agency (SSA), as well as other professionals charged with A.'s and Ad.'s well-being, ultimately determined that they each stood a better chance of a long-term foster care placement if they were placed separately. After a hearing, the juvenile court rescinded its earlier order requiring that A. and Ad. be placed together. Their mother, B.B. (mother), appeals from the order permitting A. and Ad. to be placed separately. The juvenile court did not err, and we therefore affirm.

Mother also appeals from an order approving an application to administer psychotropic medication to Ad. Mother argues she was denied due process because of the short timeframe contained in California Rules of Court, rule 5.640(c)(8), for filing an opposition to the application. We disagree, and affirm the juvenile court's order. We publish this opinion especially to call the Judicial Council's attention to the need to amend this rule of court to change the filing date for an opposition to or a request for hearing on an application to administer psychotropic medication.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

A. and Ad., then six and three years old, respectively, were detained in December 2007. The juvenile court sustained a dependency petition under Welfare and Institutions Code section 300, subdivisions (b) and (c). (All further statutory references are to the Welfare and Institutions Code.) A. and Ad. were removed from their parents' custody, and family reunification services were ordered. Following a section 366.26 hearing, the juvenile court ordered a permanent plan of long-term foster care for A. and Ad., finding they were not adoptable and no one was willing to accept legal guardianship of them.

A. and Ad. were placed at the New Alternatives Sibling Assessment Facility (SAF) because there were no foster homes available to accommodate both of them. Some placements had been ended by the foster parents because of A.'s and Ad.'s behavioral issues. Before the section 366.26 hearing, the juvenile court had approved the administration of psychotropic medication to A. to deal with her physical and verbal aggression, severe tantrums, and head banging. A.'s behavior gradually improved, and, by May 2011, she displayed few or no major behavioral issues.

Ad., however, continued having severe tantrums. During his tantrums, he would hit, kick, bang his head, and make statements such as, "[y]ou just want me to die." Ad. was periodically placed on "'observe' status" at SAF, and twice attempted to assault SAF staff members. When mother failed to visit A. and Ad. between May 19 and June 8, 2011, A.'s negative acting out behaviors increased, and Ad. became aggressive, assaultive, and self-harming. Ad.'s therapist recommended that the SAF staff remain with him all day, and Ad. was assigned a therapeutic behavior specialist due to his aggressive and defiant behavior.

After A. and Ad. had been housed at SAF for more than seven months, the SAF staff and A. and Ad.'s social worker, among others, agreed SSA should attempt to secure separate foster homes for the children. Preplacement visits occurred between A. and a potential foster mother. A. and Ad.'s appointed attorney objected to their potential separation, and mother requested a contested hearing be held before a decision was made on whether to place them separately.

In a postpermanent plan review report filed in August 2011, pursuant to section 366.3, SSA reported that A. and Ad. remained placed at SAF. A. and Ad. wanted to have their parents visit, and wanted to move into a foster home, but did not want to be adopted. Ad.'s behavior was impeding an alternative placement option. Although mother wanted to reunify with A. and Ad., she failed to visit consistently. The aggressive and disruptive behavior displayed by both A. and Ad. was connected to mother's inconsistent visits. Their therapist reported both A. and Ad. experienced tantrums, aggression, noncompliant behavior, and negative attention-seeking behavior, all of which impaired their daily living activities and ability to learn and socially thrive. Ad. also suffered from anxiety, and A. experienced symptoms of anxiety, fear, sadness, and sleep disturbances related to placement changes.

Ad.'s court-appointed special advocate (CASA) reported he was currently the "most depressed and emotionally unstable" that she had ever seen him during the year and a half she had known him. The CASA stated that Ad. "is a great kid who feels like no one wants him and is just looking for someone to spoil him with attention and love." The CASA also reported that A. and Ad. "feed off each other" by antagonizing each other, although A. would help Ad. and talk to him when he became angry.

In review reports, SSA reported that mother cancelled 13 visits and failed to appear for another 13 visits with A. and Ad. during the period from March 20 through September 2, 2011. SSA also reported that A.'s preplacement visits with a foster family had gone well, and she was ready to be placed with the family, but no foster homes were available for Ad., who continued to have significant behavioral issues.

A.'s CASA reported that A. and Ad. had a good relationship, they played well together, and enjoyed each other's company. A. was preoccupied with the uncertainty of her situation and her relationships with others. SSA reported that A. wanted to move to a foster home, and said she was "ok" with moving away from Ad.

At the review hearing, mother's attorney objected to separating A. and Ad., on the ground separation would be detrimental to both of them. However, A. and Ad.'s counsel advised the court and the parties that Ad.'s therapist had stated that while Ad. originally opposed being separated from A., Ad. now agreed and understood that it might be appropriate for A. to have a different placement. During informal discussions, the substance of which was later agreed to on the record by the court and all counsel, the ...


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