In re Christy M.
Filed 7/30/07 In re Christy M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re CHRISTY M. et al., Persons Coming Under the Juvenile Court Law. | |
SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Plaintiff and Respondent, v. DAVID M., Defendant and Appellant. | E042804 (Super.Ct.No. J201763-5) OPINION |
APPEAL from the Superior Court of San Bernardino County. Deborah A. Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
David M. (father) appeals from the termination of his parental rights under Welfare and Institutions Code section 366.26[1]as to his minor children Christian (born 1999), Cynthia (born 2001) and Christy (born 2004).
I. FACTS AND PROCEDURAL BACKGROUND
Father married Elena (mother) in 1998. The couple had three children. By April 2005, mother filed for divorce. During the course of the marriage, father was abusive to both mother and the children. As a result he was in and out of prison. For example, in September 1999, father, who had been using drugs, became frustrated with the cries of the couples one-month old child. Thus, father stuffed a blanket into the babys mouth causing bruises to his face, and fracturing the babys leg. When mother tried to interfere, father struck her, causing significant injuries to her as well. Father was convicted of willful cruelty to a child and domestic violence, for which he spent six months in prison. After he was released, the couple resumed living together until father was sent back to prison for parole violations. He was released again in September 2003 and returned to prison in March 2004.
Mother filed for divorce because she felt guilty and ashamed. Her eldest son stated he knew that father hit her every day. Mother requested a restraining order against father on May 5, 2005. Nonetheless, mother continued to have contact with father and she and the children were living with him on or about May 18, 2005.
On May 20, 2005, the San Bernardino County Department of Childrens Services (Department) filed petitions alleging that the children came within the jurisdiction of the court pursuant to section 300, subdivisions (b) and (g), due to the parents history of substance abuse, domestic violence, and absence. As to father only, the petitions alleged that he had previously injured Christian in 1999 and there was a substantial risk the child and his siblings could suffer substantial injuries in the future. ( 300, subds. (a) & (j).)
Both parents spoke to the social worker in June 2005. Mother admitted using methamphetamine. She also acknowledged that father was very violent. In fact, father had been arrested and transported to Chino State Prison on June 23, 2005. Despite the parents drug use and domestic violence, the children were in good physical health. Although they were up to date on their immunization shots and developmentally on target, the Department recommended the court take jurisdiction over the children.
Both parents attended the jurisdiction/disposition hearing held on July 29, 2005. The court found true the allegations (some as amended) in the petitions, removed the children from their parents custody, and declared them dependents of the court. The children were placed with the maternal grandmother. The court ordered supervised visitation for the parents, with fathers visits to begin upon release from state custody. The court also ordered reunification services to be provided.
An interim review report dated November 22, 2005, noted that mother was participating in services and making good progress. She visited the children on a daily basis. Because the visits went well and the children benefited from them, the Department recommended that mother be permitted to live with the children in the grandparents home. The court accepted the Departments recommendation.
In January 2006, the Department recommended, and the court granted, another six months of services for both parents. Mother continued to make progress; however, father was unable to participate in services because the Corcoran State Prison did not offer any classes or programs. Father was willing to participate in services upon his release in March 2006. Father expressed much love for his children. He tried to call the children but the grandparents would not accept his collect calls from prison. The Department suggested that he write to the children.
Father was released from prison in March 2006. Because the children were afraid to visit with him, on April 18, the court temporarily suspended paternal visitation.
According to the May 22, 2006, review report, father was living with the paternal grandmother, seeking employment, and working on his reunification plan. The older children still refused to visit with him because of fear. The court ordered supervised visitation for all three children; however, visits with the two older children were to be in a therapeutic setting.
Pursuant to the 12-month status review report dated July 17, 2006, there was a period when mother tested positive for methamphetamine, was removed from the home of maternal grandparents, and was lax about her reunification services. However, she did return to treatment and to working on her plan. Father was trying to comply with the services. He missed the children. The department recommended six more months of services. The court was inclined to continue services for mother but set the matter for a contested hearing as to father.
The social worker met with father. The Department learned that father had failed to engage in any services other than domestic violence. He complained that he did not have time for other services. He failed to drug test on May 15 and June 7, 2006. Thus, the Department changed its recommendation to no services.
Both parents attended the 12-month review hearing on August 1, 2006. Father testified. Father stated that he had been in prison until March and was unable to start participating in services until then. He had participated in domestic violence classes. He said he was enrolled in a parenting class to begin soon, and he intended to enroll in a drug program and attend therapy. He complained that the Department had not arranged for visitation with the children. The Department responded that it had attempted to call father; however, he had not returned the calls regarding visitation.
At the conclusion of the hearing, the court terminated fathers services but visitation remained as ordered. Following the hearing, the social worker set up a visit. Father failed to show up, and he failed to ask for any other supervised therapeutic visit with the older children.
Pursuant to the 18-month status review report dated November 20, 2006, the Department recommended terminating services to mother and setting a section 366.26 hearing. Mother was no longer complying with her reunification plan and father returned to prison on October 2 after violating the terms of his parole. On November 20, the court terminated all reunification services and set a permanency planning hearing.
The March 20, 2007, section 366.26 report stated that the maternal grandparents wished to adopt all three children and that the children wished to remain with the maternal grandparents. They were healthy, happy and developmentally on target. The grandparents were in their 50s and early 60s and seemed to be in good general health. The Department did not believe it would be detrimental to terminate parental rights in order to free the children for adoption. Mother continued to struggle with chronic drug problems. For the past six months, she had visited the children only twice. Father had been unable to stay out of prison long enough to bond with the children.
Both parents objected to termination of parental rights and requested a contested hearing. Father subsequently attended the permanency hearing on April 10, 2007. He asked the court not to terminate his parental rights. The court acknowledged fathers love for his children, but found by clear and convincing evidence that it was likely the children would be adopted and terminated all parental rights.
II. DISCUSSION
Father has appealed, and at his request, we appointed counsel to represent him. Counsel has filed a brief under authority of In re Sade C. ( 1996) 13 Cal.4th 952, People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth an integrated statement of the case and facts, and asking this court to undertake an independent review of the entire record.[2]
We provided father with an opportunity to file a personal supplemental brief, which he has done.[3]
Even though we are not required to conduct an independent review of the record under In re Sade C., supra, 13 Cal.4th 952, we have done so. We have completed that review and find no arguable issues.
III. DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
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[1]All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2]Counsel questions (1) whether substantial evidence supported the courts finding that the children were clearly adoptable, (2) whether substantial evidence supported the courts finding that no beneficial relationship existed between father and the children pursuant to section 366.26, subdivision (c)(1)(A), and (3) whether substantial evidence supported the courts finding that the sibling relationship exception did not apply pursuant to section 366.26, subdivision (c)(1)(E).
[3]Father asks this court to reverse the trial courts finding that adoption is in the childrens best interest, and instead, find that legal guardianship is the better choice so that he can be involved in their lives. Father states that he plans to re-enter society soon and prove that he can be a responsible parent.
