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In Re C.G., A Person Coming Under the Juvenile Court Law. v. Kenneth G

September 19, 2012

IN RE C.G., A PERSON COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
KENNETH G., DEFENDANT AND APPELLANT.



(Super. Ct. No. 10 JV SQ 2832301)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this case--which combines two notices of appeal--Kenneth G., father of the minor, appeals from orders of the juvenile court modifying the disposition judgment, and from later orders terminating the dependency and placing the minor with her mother. (Welf. & Inst. Code, § 395.)*fn1 We conclude, after careful review of the record, that father's first notice of appeal is untimely and dismiss that appeal. We shall affirm the termination and placement orders relating to father's second notice of appeal.

FACTUAL BACKGROUND

Shasta County Health and Human Services Agency (Agency) removed the minor (age three and a half) from the mother's custody in January 2010 based on allegations of sexual abuse, although the identity of the perpetrator was unknown. Appellant and the mother were engaged in a highly contested custody dispute. A physical examination verified the minor's report of abuse and the court ordered the minor detained pending further hearing. In February 2010, the court sustained the petition based upon agency reports and the mother's submission. Both parents had regular supervised visits following the initial detention and as later set by the court.

The disposition report recommended services for both parents and a trial home visit for father. The mother had begun attending parenting classes but needed to complete a psychological evaluation. The mother had to be told not to discuss the case during visits and was increasingly angry during visits causing the visit supervisor some concern. Father had not yet enrolled in a parenting class, although he participated in a psychological evaluation and had been in therapy with the minor during the past year. Father's visits included a great deal of physical play but became less so over time. Appellant was frustrated by the supervised setting for visits. The report concluded father was doing well and the mother needed to control her anger. The court denied trial home visits and set a contested dispositional hearing.

In an addendum report, the Agency stated the mother had made progress in her case plan, completing her psychological evaluation and two separate parenting classes, but she still had difficulty following visit rules as she continued to whisper, give gifts, bring too much food, physically discipline the minor and show hostility and aggression. Father was also progressing in his plan, completing the psychological evaluation and eight sessions of therapy. He was demonstrating better boundaries and was less physical in visits. Father had previously completed a parenting class and was willing to do so again. The minor told both parents she wanted to go home and began crying and begging father to take her home after visits.

A second addendum in August 2010 recommended the court declare the minor a dependent and return her to father and the mother under a family maintenance agreement. Reid McKellar, Ph.D., had completed a psychological evaluation of both parents and recommended that the parents work with a co-parenting instructor to mitigate their mutual animosity and that the minor participate in supportive therapy. The mother was visiting consistently, complying with visitation guidelines and willing to engage in co-parenting therapy. Father had enrolled in a co-parenting course. He had also completed boundary therapy; however, he had become increasingly aggressive with Agency staff. He consistently visited the minor although he did allow his frustration and anger to show in visits and this behavior had a negative impact on the minor.

At the readiness hearing in August 2010, the Agency noted the minor had been in foster care for nine months and advocated returning the minor home. Following the hearing, the Agency filed a proposed transition plan to return the minor to her parents' care. At the dispositional hearing on September 7, 2010, the court declared the minor to be a dependent, adopted the transition plan, and ordered family maintenance services. The plan included co-parenting therapy, individual therapy and additional parenting classes.

On September 24, 2010, the minor's counsel filed a petition for modification (§ 388) seeking to suspend father's visitation and rescind the trial home placement with father. The petition alleged father had been "wholly uncooperative" in co-parenting therapy and had tape-recorded sessions. The therapist's letter attached to the petition stated that father had tape-recorded two sessions without permission and he was unwilling to work with her. The therapist said that father's behavior showed he was focused on his own goals, not the minor's interests. The therapist stated father was not credible and appeared to be unaware of the minor's best interests. In contrast, the mother was participating in therapy and deeply concerned for the minor. At the hearing on the petition on September 27, 2010, the court admonished father about violating the confidentiality of dependency proceedings and ordered supervised visits for him. The court also placed the minor with the mother on a trial basis. The minute order did not reflect this ruling. No formal order beyond the September 27, 2010 minute order was filed memorializing the ruling until June 27, 2011.*fn2

On November 19, 2010, the minor's counsel filed a second petition for modification (§ 388) seeking orders for additional therapy sessions for father, therapeutic visits and conditioning visits on concurrence of the minor's counsel. The petition alleged father went to therapy but did not apply the information learned in therapy, he was intrusive with the minor at visits, the minor was having nightmares before visits with father and the minor did not want to go to visits. A visit log for a November 10, 2010 visit, later referred to as "the donut visit," described father's interaction with the minor that raised concerns about father.*fn3

The petition for modification was set for hearing. At the hearing, the court suspended visits until further order of the court and continued the hearing. The hearing was continued several times because father was ill. At the third continuance, the court ordered father to get a doctor's note explaining his illness and continued absence. At the next hearing, father's counsel advised the court on the state of father's health. The court responded that the doctor's note was required by the end of the day or a contempt order would issue. Father did not appear at the continued hearing on the minor's petition for modification on December 27, 2010, and the matter was dropped.

A family maintenance review report filed in February 2011 recommended termination of the dependency with custody to the mother. The mother was doing well and adjusting to the minor being returned to her care. Father was angry at the social worker and blamed the Agency for the minor's "'suffering.'" Father did not do the co-parenting therapy but did continue individual therapy. Father also completed a parenting class and enrolled in a co-parenting class but did not attend it. Father had not visited the minor since November 2010. He insisted he did not need the therapist monitoring visits, and wanted to return to split custody. Father accepted no responsibility for his actions or their effect on the minor. After visits with father stopped, the minor said she did not want to see him. Her behavior had improved after visits with father were suspended. The therapist still recommended therapeutic visits. The mother was continuing in therapy, had completed parenting classes and had successfully transitioned the minor back home.

At the review hearing on March 1, 2011, father filed a petition for modification, seeking to reinstate visitation and arguing the suspension order was improper because his counsel did not appear on the day the court suspended visits, the court abused its discretion in granting the interim order and cessation of visits was not in the minor's best interests. The court ordered therapeutic visitation pending a contested review hearing.

On April 14, 2011, father filed a second petition for modification, seeking to modify the dispositional orders of September 7, 2010, and the custody order of September 27, 2010, arguing the legal requirements for a dispositional hearing were not followed and both orders were in excess of jurisdiction because the court did not make findings to support ...


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