In re Alex P.

Filed 2/7/07  In re Alex P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Deborah A. Daniel, Temporary Judge.  (Pursuant to Cal. Const., art. VI, §  21.)  Affirmed.

            Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

            Ruth E. Stringer, Acting County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.

            Leslie A. Barry, under appointment by the Court of Appeal, for Minor.

            Mother appeals from the termination of her parental rights to her minor son (Minor) and the denial of her petition under Welfare and Institutions Code section 388 to change a dispositional order denying her reunification services.^[1]  Through his counsel, Minor urges affirmance.  We affirm both rulings. 

FACTUAL AND PROCEDURAL BACKGROUND

            A.        Background Facts

                        1.         Minor's birth

            Minor was born in January 2006, when Mother was 40 years old, at a medical center in San Bernardino.  Mother had prenatal medical care.

            At the time of Minor's birth, he and Mother tested positive for opiates.  However, Mother denied to medical center staff that she used alcohol or drugs.  She admitted smoking one pack of cigarettes a day, even though her doctor had counseled her against the use of tobacco during her pregnancy.

            A social worker from the San Bernardino County Department of Children's Services (DCS) spoke with Mother.  Mother admitted she had used heroin consistently for about the previous 18 years.  After she learned she was pregnant, in about her fifth month, she reduced her usage to once or twice a day.  She also started a methadone program two weeks before giving birth.

            Mother had been living with her father for about the previous two years and planned to live there with Minor.  She had some diapers and clothing for Minor but no bassinet, crib, formula, or other baby supplies and no source of income.  She expected to receive food stamps due to Minor's birth and also received some financial assistance from her father.

                        2.         Mother's background

            Mother had five other children ranging from two to 14 years old and had prior substantiated child welfare referrals in 1992, 1996, 2001, and 2003.  All but one of the other children had tested positive for opiates at birth, and the remaining child had been born while Mother was in the county jail.  All five children had been removed from parental custody in August 2003.  In all five cases, reunification services had been terminated, and Mother's parental rights had been terminated in April 2005.  All five children were being adopted by Mother's cousins, the J.'s.  

            Mother also had 12 prior arrests for drug use and possession, transportation, or sale and driving under the influence.  She had been convicted of possession of phencyclidine for sale, being under the influence of a controlled substance, narcotics possession, providing false information to a police officer, grand theft, and petty theft.

            The social worker gave Mother referrals for substance abuse treatment, parenting classes, and counseling and advised her Minor was being removed from her care.

                        3.         Father

            Minor's father (Father) was also the father of Mother's five older children, and his parental rights with respect to those children had been terminated along with Mother's in April 2005.  Mother and Father had never married.  Father had a substance-abuse problem and was known to use heroin.  He also had an extensive criminal record.

            When the case was filed, Mother did not know where Father was or how to contact him and had not seen him for about six months.  DCS later discovered Father was incarcerated for a drug-related offense.  Father's parental rights with respect to Minor were terminated with Mother's, but he is not a party to this appeal.

            B.        Detention Hearing  ‑ ‑   February 2, 2006

            On February 1, 2006, DCS filed a dependency petition alleging failure to protect, failure to support, and abuse of siblings.  The following day, the juvenile court ordered that Minor be removed from his parents and placed in the custody of DCS.  Pending the development of the case plan, DCS was to provide reunification services. 

            The court granted Mother visitation twice a week, supervised, upon Minor's release from the hospital, where he was currently in the intensive care unit.  The court asked that Mother drug test that day.  At a subsequent hearing on February 23, 2006, Mother voluntarily agreed to another drug test.

            C.        Jurisdiction/Disposition Hearing -- March 30, 2006

            After Minor's release from the hospital on March 12, 2006, the court ordered that Minor be placed with the J.'s, along with his five siblings.  The court also granted Mother weekly visits, to be supervised due to her drug use. 

            At the time of the jurisdictional/dispositional hearing on March 30, 2006, Mother's personal and financial circumstances, and her corresponding inability to care for Minor, had not changed since Minor's detention.  Mother had yet to complete a drug treatment program successfully and had failed in various programs.  In the 12 months from September 2003 to September 2004, Mother had failed in six different programs and also had been terminated from drug court.  In the opinion of the social worker, Mother would not be able to parent Minor adequately until she could complete a treatment program. 

            Mother had been attending all of her monthly visits with her other children until they were stopped because of her drug use.  However, she was usually late and would go to her car for long periods of time during the visits. 

            It did appear to the social worker that Mother sincerely wanted to reunify with Minor.  However, the worker believed that providing Mother with reunification services would not be in Minor's best interest, because he needed a permanent and stable home.  Mother could not provide a suitable homeat that time, and it was unlikely she could do so in the future, even with reunification services.  Instead, the most appropriate placement for Minor was with the J.'s, to keep all of the children together.

            At the March 30, 2006 hearing, the court declared Minor a dependent child of the court and ordered him removed from parental custody to the custody of DCS.  The court found Mother's and Father's progress toward overcoming the conditions that made the out-of-home placement necessary was insufficient, for the reasons described by the social worker.  It denied reunification services to Mother pursuant to section 361.5, subdivision (b)(10), (11), and (13).

            Finally, the court set a selection and implementation hearing pursuant to section 366.26.  Pending that hearing, the court granted Mother monthly visitation, supervised.  According to counsel for DCS, Mother had not availed herself of the visitation previously granted, and there had been no visits.  The social worker, however, stated in a July 20, 2006, report that there were some problems with visitation in the beginning because Mr.  J. would not bring Minor for the visits.  He had to be told that the visitation had to take place as ordered by the court.

            D.        Mother's Section 388 Petition -- August 7, 2006

            The selection and implementation hearing was scheduled for July 28, 2006.  The DCS reports for the hearing stated that Minor appeared to be adjusted well to the home environment of his prospective adoptive parents, the J.'s, and to be emotionally stable.^[2]  He was developing normally for his age and had no delays or cautions.  He displayed a close and loving relationship with the J.'s and his extended family, which included his five siblings and the two biological children of the J.'s. 

            Mother and Minor were visiting one time per month.  The visits had been going well, and Mother was very attentive to Minor during the visits. 

            On July 28, 2006, the court continued the selection and implementation hearing to August 17, 2006.  On August 7, 2006, however, DCS reported that the J.'s were feeling overwhelmed with the care of Minor and his siblings and wanted to rescind their decision to adopt Minor.  DCS therefore recommended that instead of terminating parental rights, the court order long-term foster care and DCS find another home for Minor that reasonably could be expected to become permanent.

            Also on August 7, 2006, Mother filed a petition (captioned a â€