In re S.S.

Filed 2/20/07  In re S.S. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge.  Affirmed.

            Jill Regal, under appointment by the Court of Appeal, for Defendant and Appellant Lorenza A.

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

            Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

David S. and Lorenza A., the parents of three-year-old K.S. and two-year-old S.S., appeal from the juvenile court's August 14, 2006 order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26.[1]  David argues the court erred in failing to apply the parent-child relationship exception to termination of parental rights contained in section 366.26, subdivision (c)(1)(A).[2]  Lorenza asserts no independent error; she joins David's argument and urges, if we reverse the termination order as to David, we should also reverse the order as it applies to her.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1.  Detention, Adjudication and Disposition as to K.S.

K.S. was initially detained by the Los Angeles County Department of Children and Family Services (Department) following her birth in April 2003 with a positive toxicology screen for cocaine.  (K.S.'s five older half-siblings had all been removed from Lorenza because of her continuing drug use.)  After a brief placement in foster care, K.S. was released to David; Lorenza was permitted monitored visitation; and the juvenile court terminated jurisdiction.

K.S. was again detained on May 31, 2004 after David and Lorenza were arrested for outstanding warrants.  The section 300 petition alleged David had a history of domestic violence, substance abuse and drug-related criminal activity and Lorenza had failed to comply with prior court orders regarding drug treatment and testing and, as a result, had failed to reunify with K.S.'s siblings.  On September 9, 2004, after a contested hearing, the juvenile court sustained the petition as amended; declared K.S. a dependent child of the juvenile court under sections 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (j) (sibling abuse); ordered K.S. to be suitably placed in foster care; denied family reunification services for Lorenza; and ordered David to attend and complete domestic violence and individual counseling and to submit to random drug and alcohol testing.  Both parents were permitted monitored visitation.  Following David's appeal, we affirmed the juvenile court's jurisdiction findings and disposition orders.  (In  re K.A. (May 11, 2005, B177905) [nonpub. opn.].[3])

2.  Detention, Adjudication and Disposition as to S.S.

In November 2004, while David's appeal from the jurisdiction findings and disposition orders as to K.S. was pending in this court, S.S. was born.  The Department, advised of the birth approximately two weeks later by K.S.'s foster mother, filed a new petition pursuant to section 300, subdivisions (a), (b) and (j), which mirrored the sustained allegations of the petition filed with respect to K.S.  The Department did not initially detain S.S., who had been born healthy and not exposed to drugs.  At the arraignment hearing, S.S. was allowed to remain with Lorenza; David's visits were to be monitored.  At the continued arraignment and detention hearing on January 27, 2005, however, the Department reported Lorenza had refused to allow the social worker to see S.S. and the social worker had reason to believe David and Lorenza were living together in violation of court orders.  The Department, joined by S.S.'s counsel, asked that the child be detained from Lorenza.  David and Lorenza admitted to the court they were living together.  The court then detained S.S. from Lorenza and released her to David, conditioned on David continuing to comply with his case plan, including clean drug and alcohol tests.  Lorenza was permitted to reside in the home provided she enrolled in a substance abuse program and submitted to random drug testing.   

At the jurisdiction and disposition hearing for S.S. on April 26, 2005, the court sustained counts b5 and j1 of the section 300 petition, which as amended alleged Lorenza had failed to resolve the issues that brought her other children into the dependency system (that is, Lorenza's on-going substance abuse problem) and this negligent conduct  endangerED S.S.  All other counts were dismissed.  S.S. was declared a dependent child of the juvenile court; S.S. was permitted to remain in David's custody with a home-of-parent order; and, if compliant with her case plan, Lorenza could continue to reside in the family home.  The court ordered family maintenance services for David and family reunification services for Lorenza:  David was ordered to comply with the disposition plan previously ordered as to K.S. (that is, to attend domestic violence counseling, individual counseling and Alanon meetings and to submit to random drug and alcohol tests); Lorenza was ordered to attend a drug rehabilitation program that included random testing, a parent education program and individual counseling.  These orders were continued at a review hearing held pursuant to section 364 as to David and section 366.21, subdivision (e), as to Lorenza, on August 3, 2005.

3.  K.S.'s Contested Six-month Review Hearing

Through counsel David had informed the juvenile court in February 2005 he wanted K.S. returned to him.  The court initially set a contested hearing for March 2005 pursuant to section 366.21, subdivision (e), which was continued several times and ultimately held on June 7, 2005.  In the interim David was initially permitted unmonitored day visits with K.S. (without Lorenza present) and thereafter allowed to have weekend-overnight visits with her.  When the six-month hearing was finally completed, in accordance with the Department's recommendation, the court terminated the prior suitable placement order and returned K.S. to David with a home-of-parent order.  The court once again ordered David to continue to comply with the case plan.

4.  The Supplemental Petition as to K.S. and S.S.

On October 27, 2005, after David and Lorenza failed to attended team decisionmaking and family preservation meetings scheduled with the social worker, the Department filed a section 387 supplemental dependency petition as to both K.S. (then two years old) and S.S. (then 11 months old) alleging David had created a detrimental home environment for the children by his failure to participate in domestic violence counseling, parenting classes and random drug testing in violation of the juvenile court's orders.  The detention report stated David had failed to appear for six drug tests and failed to enroll in domestic violence counseling or individual counseling.  The report also indicated David and Lorenza had been seen by residents of a motel used by the Midnight Mission asking for drugs and David had been seen smoking drugs from a pipe.  Neither David nor Lorenza attended the October 27, 2005 detention hearing at which K.S. and S.S. were ordered detained and placed in a foster home.  Visits with both parents were to be monitored.

The Department's jurisdiction/disposition report prepared for a December 6, 2005 pretrial resolution conference on the section 387 petition stated David had missed two additional drug tests and still had not provided the Department with proof of enrollment in domestic violence counseling or individual counseling.  Lorenza had also missed additional drug tests and had not contacted the Department or the foster family agency to request visits with the children.  The Department recommended terminating all family reunification services and setting a section 366.26 permanency planning hearing.  Neither parent attended the December 6, 2005 hearing; the court set a contested hearing on the supplemental petition for January 17, 2006, which was thereafter continued to March 20, 2006.

David was personally present at the contested adjudication; and both parents appeared through counsel but offered no evidence.  The court sustained the supplemental petition as amended finding David had failed to attend or, in the alternative, to consistently attend the court-ordered programs.  Based on the sustained petition the court terminated its prior home-of-parent (father) orders as to both children and placed them in the care of the Department for suitable placement.  The court further found David had received more than 18 months of reasonable reunification services as to K.S. and ordered those services terminated.  (Lorenza had been denied reunification services at the disposition hearing on the initial dependency petition.)  As to S.S. the court denied David reunification services pursuant to section 361.5, subdivision (b)(10) (reunification services need not be offered to parent of dependent child if services for sibling of child previously had been terminated because parent failed to reunify with sibling and parent thereafter has not made reasonable effort to treat problems that led to sibling's removal) and terminated reunification services previously ordered for Lorenza.  The court scheduled a section 366.26 hearing for July 24, 2006; a status review hearing (§ 366.3) was also scheduled for that date.[4]

5.  The Section 366.26 Hearing and the Order Terminating Parental Rights

K.S. and S.S. were placed together with prospective adoptive parents (the G's) on May 16, 2006.  (A home study for the G's had been completed in January 2006.)  According to the Department's July 24, 2006 status review report, both children had adjusted well to their new placement and had been observed to be playing and laughing:  â€