In re Araya C

Filed 5/31/06 In re Araya C. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. Valerie Lynn Skeba, Juvenile Court Referee. Affirmed.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant L. B.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant Adrian W.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

____________________

In this juvenile dependency appeal, the child's mother, L. B. (mother), and father, Adrian W. (father), separately appeal certain juvenile court findings and orders. Father appeals from the juvenile court's order denying him a hearing on his Welfare and Institutions Code[1] section 388 petition for modification. He also purports to appeal from the juvenile court's order denying his request for a bonding study. Both mother and father appeal from the juvenile court's order terminating their parental rights to Araya C. (Araya), claiming that substantial evidence does not support the juvenile court's finding that subdivision (c)(1)(A) of section 366.26 does not apply.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Detention Report and Section 300 Petition

On July 23, 2004, mother, then pregnant with Araya, tested positive for both cocaine and methamphetamine and was admitted to the hospital with a high-risk pregnancy. She admitted that she drank two to three beers every day while pregnant and smoked less than one pack of cigarettes each day. She received no prenatal care. Araya was born two weeks later, with a tumor the size of a baseball that ruptured immediately after birth, requiring life-saving surgery.

Araya is mother's seventh child.[2] Five of mother's other children were or currently are juvenile dependents. Mother has failed to reunify with any of them. All of these children are in permanent plans: two in adoptive homes, two in legal guardianship, and one in long-term foster care. One of the children also was born testing positive for drugs.

Two of Araya's siblings, Jonathan C. (Jonathan) and Todd C.[3] (Todd), are father's children as well. While Jonathan lives with father, father never reunified with Todd because he was incarcerated at the time of the child's birth. By the time father was released, Todd had bonded with father's mother, who lives in Oklahoma and is Todd's legal guardian. Father believed that it was in Todd's best interests to continue residing with his legal guardian. (Adrian W. v. Superior Court (Nov. 15, 2005, B184237) [nonpub. opn.].)

Araya was detained at the hospital on August 12, 2004, and on August 17, 2004, the Department of Children and Family Services (DCFS) filed a juvenile dependency petition regarding Araya pursuant to section 300, subdivisions (b) and (j). The petition alleged that (1) mother was a frequent drug abuser, including during her pregnancy; (2) mother was unable to provide regular care or a safe environment for Araya; (3) mother failed to reunify with their other children; (4) both mother and father failed to reunify with Todd; and (5) mother's and father's conduct endangered Araya's physical and emotional health and safety.

Prerelease Investigation Hearing

A prerelease investigation hearing was held on September 2, 2004. In a report prepared for the hearing, DCFS advised that Araya had been placed in a foster home upon her release from the hospital. On August 26, 2004, father tested positive for marijuana and for norpropoxphene. Father advised that he had been disabled for the past four years as a result of recurring pulmonary embolisms, and that he takes a number of medications each day, including Propxy N/Apap. This explained the positive test for norpropoxphene. DCFS advised that father has a lengthy criminal history from 1980 through 2000, including a conviction in 1986 of willful cruelty to a child and several drug-related convictions. Father also admitted to a history of domestic violence with Alice T., one of several women with whom he has had children. Because of father's lengthy criminal record for willful child cruelty, domestic violence and drug-related crimes and his recent positive test for marijuana, DCFS recommended that Araya not be placed with father. (Adrian W. v. Superior Court, supra, B184237 [nonpub. opn.].)

Jurisdiction/Disposition

Following mediation, on October 13, 2004, mother and father submitted to the allegations in the petition. The juvenile court declared Araya a dependent child pursuant to section 300, subdivisions (b) and (j). Family reunification services were denied to mother pursuant to section 361.5, subdivisions (b)(10) and (b)(11), based upon her failure to reunify with her older children. The juvenile court offered reunification services to father. Among other things, the juvenile court ordered that father undergo random drug testing once a week. Both parents were granted monitored visitation twice weekly.

Section 366.21 Status Review Hearing and Father's Continued Use of Marijuana

At the November 23, 2004, status review hearing, DCFS reported that mother and father continued to visit Araya together twice weekly. However, father was still using marijuana and had tested positive twice since the prior court hearing, just one month earlier. Father claimed that his use of hemp seed oil, which, when ingested in large amounts, could produce a positive screen for marijuana, explained the positive drug test. The juvenile court was â€