In re Ariana T.

Filed 9/15/06 In re Ariana T. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appeal from an order of the Superior Court of Orange County, Ronald P. Kreber, Judge. Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Albert T.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Berneice R.

Benjamin P. de Mayo, County Counsel, Dana J. Stits and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minors.

* * *

Albert T., Sr., (the father) and Berneice R. (the mother; collectively, the parents) appeal from an order terminating their parental rights. The parents argue the court should have invoked the exception codified in Welfare and Institutions Code section 366.26, subdivision (c)(1)(A)[1] (the benefit exception) and adopted an alternate permanent plan for the children. Because the juvenile court's order is supported by substantial evidence, we affirm.

I

FACTS

In April 2004, a hospital hold was placed on newborn Lilyana after she and the mother tested positive for opiates at the time of Lilyana's birth. The mother admitted to smoking heroin and stated that she had been in a methadone program. The parents' other children were also taken into protective custody. At the time, Ariana was six years old, and Albert, Jr., (Albert) was four. They were placed with their maternal aunt and uncle, Stephanie and Anthony R.

Orange County Social Services Agency (SSA) filed a petition alleging that the children came within section 300 because of the parents' history of unresolved substance abuse, the father's failure to protect the children from the mother's substance abuse, and that Ariana and Albert were at risk because of Lilyana's birth with drugs in her system. At the detention hearing, the court ordered the children detained. Monitored visitation was approved, and SSA was given leave to authorize further visitation.

Ariana and Albert remained with Stephanie and Anthony R., while Lilyana was placed with her step-maternal great-aunt, Ramona M. The older children informed the social worker that they liked living with their aunt and uncle, and the social worker felt they were adjusting well. The children's caretakers arranged for sibling visitation once a week.

During this period, SSA interviewed the mother. She admitted to using heroin prior to her pregnancy with Lilyana, approximately once every three days. She denied being an addict, but admitted that she knew using heroin during her pregnancy was wrong. The social worker referred the mother to drug testing and a drug treatment program.

The father did not present himself for an interview. The mother informed the social worker that the father had been incarcerated in county jail since May 5, 2004, and was expected to be incarcerated for seven months. The social worker subsequently interviewed the father, who confirmed this information. The social worker told the father to inquire about drug treatment programs and other services and to contact SSA upon his release. While the father wanted to visit the children, he acknowledged it would be difficult to arrange while he remained in jail.

In an interim report before the jurisdiction/disposition hearing, Lilyana's caretaker reported that the mother's visitation had been inconsistent. Visitation with the older children went well, but on occasion there were arguments with family members.

SSA further reported that the mother had not shown up for her intake appointment for the drug treatment program and had not started drug testing. SSA tried to contact the mother, but her cell phone had been disconnected. She did eventually complete her intake appointment and began attending Narcotics Anonymous meetings. She had not started drug testing.

At the jurisdiction/disposition hearing on June 15, 2004, the parents entered pleas of no contest. The court found the allegations in the petition to be true and declared the children dependents of the court. The court approved the case plan, which required the father to complete counseling, parent education, substance abuse treatment and testing, and a 12-step program. The court approved weekly, monitored visitation.

In August 2004, Lilyana was moved to the home of Anthony and Stephanie R., along with the older children. The mother was authorized twice weekly, monitored visitation with the older children. The visits were somewhat sporadic; the caretakers reported that she would be consistent in her visits for several weeks, and then miss several visits. She generally acted appropriately, but disrupted Ariana's birthday party in September, when she appeared to be under the influence of drugs. She took some gift cards that Ariana had been given as birthday gifts.

Thereafter, SSA restricted visitation to monitored visits at the SSA offices. The monitor had trouble reaching both the mother and the caretakers to arrange visits at first, and then apparently, had trouble reaching the mother at all. She stopped visiting the children for nine months, until the summer of 2005. She telephoned the children on an inconsistent basis. She did not contact the children during Christmas.

With respect to the father, he was incarcerated for the first eight months of dependency. He was authorized collect telephone calls, but had a hard time reaching the children. He did not send regular cards or letters. Between the father's release in January 2005 and May 2005, he was authorized weekly monitored visits, but only visited about five times. After his release, SSA provided the father with referrals for services.

In the December 2004 status report, SSA recommended terminating services and scheduling a hearing pursuant to section 366.26 (the permanency planning hearing). The social worker reported that the mother had only minimally participated in her case plan and had not visited the children since September. The court, however, continued services and scheduled a 12-month review hearing for May 2005.

In the report for the 12-month review, SSA reported that she did not know the mother's whereabouts. The mother had begun drug treatment services, but did not follow through. Moreover, she had reported to the social worker that she was pregnant and due in June. The social worker provided referrals for prenatal services, substance abuse treatment and residential programs for pregnant women. She had not seen the children since September 2004.

The father submitted to drug testing on an irregular basis, appearing for approximately half his scheduled tests, which were negative. He did not participate in drug treatment, parenting education, or counseling.

The children, however, were doing well. Albert and Lilyana appeared happy and without emotional problems. Ariana generally happy, but was sad on occasion because she missed her parents. Ariana and Albert told the social worker that they loved their caretakers and wanted to stay there. They had begun calling them â€