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In re Alayah J.

California Court of Appeals, Second District, Second Division

March 8, 2017

In re ALAYAH J., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent.
v.
NIEMA B., Defendant and Appellant.

         APPEAL from an order of the Superior Court of Los Angeles County, No. DK05617 D. Zeke Zeidler, Judge. Affirmed.

          Lori N. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

          Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and Stephanie Jo Reagan, Deputy County Counsel for Plaintiff and Respondent.

          CHAVEZ, J.

         Appellant Niema B. (mother) appeals from the juvenile court's order terminating parental rights over her children Alayah J. (born Sept. 2010), Curley B. (born Oct. 2012), and Christopher B. (born Dec. 2014). Mother contends the order must be reversed because the juvenile court erred by initially granting her a hearing on her Welfare and Institutions Code section 388[1] petition seeking unmonitored visits and an assessment of her home for overnight visits and placement of the children, and then subsequently denying her such a hearing, and by terminating her parental rights before considering her section 388 petition.

         We agree that the juvenile court erred by terminating mother's parental rights without first considering her section 388 petition. We conclude that no miscarriage of justice occurred, however, as a result of that error and therefore affirm the order terminating mother's parental rights.

         BACKGROUND

         Detention and section 300 petition as to Alayah J. and Curley B.

         In March 2013, the Los Angeles County Department of Children and Family Services (the Department) received a referral alleging that Alayah J. and Curley B. were victims of general neglect and that their parents were abusing drugs. Mother told the responding social worker that she had been diagnosed with mild mental retardation and that she receives Social Security benefits because of her disability. She tested positive for marijuana in an on demand drug test. Curley's B. father, Curley B. Sr. (Curley Sr.), [2] told the social worker that he was diagnosed with paranoid schizophrenia and though he does not receive psychiatric services, he uses marijuana to manage his mental health problems. Both parents declined voluntary services.

         In July 2013, the Department received another referral alleging that Alayah J. was a victim of emotional and physical abuse by her father, David J.[3], who arrived at the children's home and said he was taking Alayah J. with him. An altercation with mother ensued, but David J. left before law enforcement arrived at the scene. Mother filed a police report alleging that David J. had punched both her and Alayah J. in the face. Mother stated she was a victim of domestic violence from David J. and that she has a restraining order against him.

         In September 2013, the Department received another referral alleging that Curley Sr. was arrested following an incident of domestic violence with mother. The report alleged that mother and Curley Sr. argued and slapped each other in the presence of the children and that Curley Sr. was arrested when the altercation continued onto the street.

         In February 2014, the Department again met with mother and Curley Sr. in an effort to persuade them to participate in voluntary services. When the parents declined, the Department obtained a detention warrant and filed a section 300 petition on behalf of the children. The petition alleged that the parents engaged in domestic violence, drug use, including daily use of marijuana, and that both parents had emotional and/or mental health problems rendering them incapable of providing care for the children.

         At the March 24, 2014 detention hearing, the juvenile court found Curley Sr. to be the presumed father of Curley B. and David J. to be the alleged father of Alayah J. The court ordered both children detained and accorded the parents monitored visits.

         Adjudication and disposition hearing as to Alayah J. and Curley B.

         On May 9, 2014, both mother and Curley Sr. pled no contest to an amended petition. The sustained allegations stated that mother and Curley Sr. had been involved in a physical altercation in the presence of the children in which Curley Sr. struck mother and that he was arrested and convicted of domestic violence; that Curley Sr. had mental health problems, including paranoid schizophrenia and substance abuse, and was a recent abuser of marijuana.

         Mother agreed to a court ordered case plan that required her to participate in a domestic violence support group for victims; random or on demand consecutive drug tests; a full rehabilitation program with random testing in the event of any missed or positive drug test; a parenting program; a psychological assessment/psychiatric evaluation; and individual counseling to address case issues, including substance abuse, domestic violence, and protective parenting.

         Review proceedings and termination of reunification services

         In November 2014, the Department reported that Alayah J. and Curley B. were both placed with a paternal great-aunt, Ms. B., and were thriving under her care. Ms. B. was also monitoring mother's and Curley Sr.'s twice weekly visits with the children. She reported in August that the parents had appeared unannounced at her home. When Ms. B. told mother that Alayah J. was being disciplined for kissing a boy, mother slapped Alayah J. across the face with a sandal, causing the child's nose to bleed. Mother and Curley Sr. returned to Ms. B.'s home the following day and attempted to take a television from the home. In the ensuing argument, the parents assaulted Ms. B. and her 16-year-old granddaughter. Curley Sr. was subsequently arrested on a warrant relating to the assault.

         The social worker advised Ms. B. to have the parents contact the Department for future visits. Neither parent contacted the Department to schedule a visit during the months of September and October.

         Mother appeared at the November 7, 2014 review hearing, but Curley Sr. remained incarcerated. At the parents' request, the matter was set for a contested hearing on January 5, 2015.

         In December, Curley Sr. told the social worker that he and mother were living with friends but continued to receive mail at their address of record. He said mother was participating in counseling and a parenting program and was pregnant and receiving prenatal care.

         At a January 5, 2015 contested status review hearing, the juvenile court found mother and Curley Sr. in partial compliance with their case plans and terminated reunification services.

         Birth of Christopher, and detention and section 300 petition on his behalf

         Mother gave birth to Christopher on December 14, 2014, after suffering a grand mal seizure. Christopher weighed only 1 lb. 4 oz. and was in the NICU. Mother had tested positive for marijuana on the date of Christopher's ...


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