In Re Anthony P.

39 Cal. App. 4th 635, 46 Cal. Rptr. 2d 107
CourtCalifornia Court of Appeal
DecidedOctober 24, 1995
DocketB091654
StatusPublished
Cited by47 cases

This text of 39 Cal. App. 4th 635 (In Re Anthony P.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Anthony P., 39 Cal. App. 4th 635, 46 Cal. Rptr. 2d 107 (Cal. Ct. App. 1995).

Opinion

39 Cal.App.4th 635 (1995)
46 Cal. Rptr.2d 107

In re ANTHONY P., a Person Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Petitioner and Respondent,
v.
RHONDA P., Objector and Appellant.

Docket No. B091654.

Court of Appeals of California, Second District, Division Five.

October 24, 1995.

*636 COUNSEL

Jane Winer, under appointment by the Court of Appeal, for Objector and Appellant.

De Witt W. Clinton, County Counsel, Joe Ben Hudgens, Principal Deputy County Counsel, Jones, Day, Reavis & Pogue, Elwood Lui and Laura A. Matz for Petitioner and Respondent.

[Opinion certified for partial publication.[*]]

OPINION

TURNER, P.J. —

I. INTRODUCTION

Appellant, Rhonda P., appeals from a juvenile court order terminating her parental rights to the minor, Anthony P., pursuant to Welfare and Institutions *637 Code, section 366.26.[1] Appellant contends the order must be reversed because the juvenile court failed to consider adequately the minor's wishes about placement and adoption as well as neglected to provide for his ongoing and frequent visitation with his younger brother Cody P. In the published portion of this opinion, we address the issue of whether appellant has waived her rights pursuant to section 16002 concerning sibling visitation because of a failure to properly raise the question in the trial court. We affirm.

II. BACKGROUND

The minor was born on September 2, 1989, to appellant and Allen H., who is not a party to this appeal. On May 16, 1990, the department of children's services (department) filed a section 300 petition on behalf of the minor, who was approximately eight months old. It alleged on or about May 15, 1990, appellant went to a bar to consume alcohol, leaving the minor at her home without adequate supervision surrounded by empty beer bottles. Further, it was alleged she had a history of alcohol use which rendered her unable to properly provide care for the minor. The court sustained the petition on September 13, 1990, declared the minor to be a dependent ward of the court, and placed him in foster care. On October 24, 1990, the court ordered reunification services for appellant consisting of: monitored visits; a bus pass; parenting, drug and alcohol counseling; drug testing; and individual counseling.

On April 24, 1991, and October 23, 1991, six-month and twelve-month reviews were held and the juvenile court continued the reunification services plan. On November 14, 1991, at the 18-month judicial review hearing, the juvenile court found: appellant did not comply with the case plan; there was no substantial probability that the minor would be returned to her custody in 6 months; and the minor was not adoptable. The court: terminated reunification services; ordered a permanent plan of long-term foster care; ordered appellant to participate in department approved counseling; and granted appellant weekend and overnight visitation. On approximately February 1, 1992, appellant had another child, Cody P., and moved in with her mother in a senior citizen housing project. Appellant continued to have overnight visitation with Anthony P. Sometime later, appellant moved out of her mother's home. On May 14, 1992, November 12, 1992, December 14, 1992, and June 14, 1993, the juvenile court reviewed and continued in full force and effect the permanent plan and permanent placement order.

On December 13, 1993, the court scheduled a section 366.26 hearing, which was continued several times, to determine a new permanent plan. May *638 18, 1994, was appellant's last visit with the minor. At that visit, the minor ignored appellant and was resistant to sharing or interacting with her. At a hearing on October 6, 1994, appellant requested unmonitored visitation with the minor. The court ordered "the visitation with [the minor] is still monitored." In August 1994, Cody P., was also detained by the department.

In September 1994, the minor's original foster family thought he was too disruptive in their home, decided not to adopt him, and asked to have him removed. On August 29, 1994, the minor met his new foster parents. By September 12, 1994, he was placed in their home on what was referred to as a "fost-adopt" basis which meant they were planning to adopt him. The minor's new foster family was "open" to taking custody of Cody P. On February 16, 1995, Cody P. was made a dependent ward of the court.

On March 22, 1995, the section 366.26 hearing concerning permanent placement services occurred. Appellant, who was present, and the minor, who was not present, were represented by separate counsel. At that time, the minor was five and one-half years old, had been with new foster family for six months, and had not been visited or contacted by appellant for ten months. Appellant's counsel objected to the minor not being present at the hearing and the fact that his "feelings were not expressed in the report as to his relationship with this mother." Counsel for department stated that the social worker was present to testify with regard to anything that was not explicitly written in the report. After a discussion off the record, the court stated: "All right. Counsel, it's my understanding that mother's attorney is not asking that the minor be brought in but wants an opportunity to cross-examine the worker regarding any interview that the worker's had with the minor; is that correct?" Appellant's counsel responded: "Yes, that is. [¶] ... [¶] Your honor, I would say for the mother, the mother had wanted the minor to be brought in today so that he could be questioned because she does not want the minor to think that she is deserting him. Because after this hearing, she's afraid she will never have any contact with him." Appellant's counsel then stated: "But what we did ask, if minor's counsel could have had a chance to interview him in lieu of minor being brought into court today, and I do not think that has happened." The trial court then stated: "All right. Counsel, I have to state for the record that this case has been set for a .26 hearing since, as I indicated, 4/11/94. [¶] All counsel were aware that the case was to be here today. These requests apparently were not made before right now and it's five minutes to 2:00. No one indicated to Mr. Roth that [the minor] should be brought in. No one indicated to the worker or to the court that [the minor] should be here today. [¶] Now, Mr. Roth is looking through the code sections to see if there's a requirement. The court has looked. [¶] I don't see that there's a requirement that a minor five years has *639 to be brought to court for the .26 hearing. And it's my understanding that the worker has interviewed the family and the minor and is here for cross-examination. [¶] I will receive any other information that you have if you can direct the court to the code section that I'm missing regarding having — to have the minor five years here in court. [¶] If you're asking that Ms. Kemper [the minor's counsel] interview the minor, Ms. Kemper indicated that she has not done that. But as I've indicated, Ms. Kemper, based on the information that she has, is willing to go forward notwithstanding that she has not spoken to the minor for this hearing.... [¶] All right. Counsel, we've looked to the Civil Code to see we can draw some inference to what's required through Civil Code [section] 232. [¶] I think everyone at this point is in agreement that the minor is not required to be here.

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Cite This Page — Counsel Stack

Bluebook (online)
39 Cal. App. 4th 635, 46 Cal. Rptr. 2d 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-anthony-p-calctapp-1995.