In re A.S.
Filed 12/17/12 In re A.S. CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
In re A.S.,
a Person Coming Under the Juvenile Court Law.
SAN
FRANCISCO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.S. et
al.,
Defendants and Appellants.
A135215
(San
Francisco City
& County
Super. Ct. No. JD10-3215)
Two-year-old A.S.
(Minor), who was detained for child abuse and neglect at the age of four
months, is a dependent child of the juvenile court. The court terminated
appellants T.S. (Mother) and A.S. (Father), and ordered a permanent plan of
adoption. Despite acknowledging below
they had no legal grounds to challenge termination, both Mother and Father
appeal. They contend the juvenile court
should have engaged in increased efforts to assist Mother in finding
housing. For the reasons we discuss
below, we find no merit in the contention and affirm.
I. PROCEDURAL BACKGROUND & FACTS
On
June 21, 2010, respondent
Francisco County Department of Children and Family Services (Department),
filed a dependency petition on Minor’s behalf.
failed to protect four-month-old Minor such that she suffered serious physical
harm: fractures of the left clavicle and
left femur, a left-sided subarachnoid hemorrhage, and multiple bruises of the
face and abdomen, all consistent with inflicted nonaccidental trauma and
raising the suspicion of possible physical abuse. (§ 300, subds. (a) & (b).) The Department further alleged Mother and
Father failed to protect Minor due to alcohol and substance abuse problems,
respectively; had failed to maintain well child health care; and were unable to
provide proper care, shelter, and supervision for Minor. (§ 300, subd. (b).) In addition, the Department alleged Mother
and Father had failed to protect a child under five from severe physical abuse
(§ 300, subd. (e)), and Father was currently incarcerated in the San Francisco
County Jail and was unable to care for Minor.
(§ 300, subd. (g).)
The
record shows Mother left Minor at home at 11:30 on a Friday evening so she
could go “bar-hopping†in San Francisco, and did not come home until the
following Monday evening. She left Minor
in Father’s care. When she returned she
could find neither Minor or Father. She
found Minor under the bedcovers when she noticed the sheets moving. She noticed bruising on Minor’s left ear and
what seemed to be a diaper rash. She did
not think the injuries were severe enough to warrant medical attention.
The
next day Mother noticed bruising and swelling on both sides of Minor’s head and
“really bad†bruising in the diaper area that was “dark, dark purple.†Father’s brother, who lived in the upstairs
part of the home, called 911. Police
arrived and took Minor to the emergency room.
Mother called Father who denied Minor was injured while in his care. Mother told police she saw evidence that
Father had been drinking while she was gone, and that he could become violent
when he drank. Father’s brother and his
girlfriend told police both Mother and Father drank heavily. The police described the home as “filthy and
in disarray,†and found over a dozen empty alcohol bottles in a trash can.
Father
was arrested on a number of charges including child neglect and inflicting
corporal injury on a child. Mother was
arrested on outstanding warrants. After
the petition was filed, Minor was placed in emergency foster care. Her medical evaluation was consistent with
the allegations of the petition and showed a pattern of nonaccidental trauma.
The
disposition report noted both parents had long-standing substance abuse
problems; Mother had a long criminal history for drug offenses; and Father had
a long criminal history for drug offenses, burglary, and attempted
robbery. Mother had five other children,
all of which had been removed from her care due to substance abuse and/or
neglect. The report also included a
medical assessment that Minor had been born premature and the parents had not
obtained proper pediatric care for Minor.
The
Department recommended against social services for either parent, because of
the severe injuries to Minor, the lack of adequate care, the parents’
longstanding histories of substance abuse, the removal of Mother’s five other
children from her care, and Father’s incarceration for at least two more
years. The Department noted that
Mother’s sister, whose initials are also T.S. and whom we will refer to as
“Aunt,†relocated from Louisiana to care for Minor.
The
parties reached a settlement agreement regarding jurisdiction, and the Department filed an amended petition
alleging failure to protect (§ 300, subd. (b)) due to Mother’s substance
abuse problem, for which she was receiving treatment, and Father’s substance
abuse problem, for which he required assessment and treatment; and severe
physical abuse (§ 300, subd. (e)) for causing Minor’s injuries, which
included not only those alleged in the original petition, but also a healing
clavicle fracture one to four weeks old.
The amended petition also alleged that two of Mother’s other children
were previously dependents of the juvenile court and Mother’s parental rights
were terminated after a failure to reunify.
The
parents submitted to the allegations of the amended petition and the juvenile
court found the allegations to be true.
Father filed a waiver of reunification services; in addition, the court
denied him services under section 361.5, subdivision (b)(4). The court granted reunification services to
Mother, which included residential drug treatment; counseling and therapy
regarding past trauma, domestic violence, and substance abuse; and an anger
management course.
In
the six-month review report, the Department reported Mother was making only
minimal progress with her reunification case plan. Mother voluntarily left a residential
treatment program and was living in a trailer.
Mother tested positive for cocaine, only sporadically attended therapy
sessions, and had missed a few scheduled visits with Minor. Mother was working with a program to find
more stable housing and assistance in enrolling in other treatment
programs. She was cooperative and open
to services, but needed additional support and services regarding her substance
abuse problem before reunification.
Minor was a year old and was still living with Aunt. Minor had behavior problems, but was in
general good health.
The
court accepted the Department’s recommendation for another six months of
reunification services.
In
the 12-month review report, the Department recommended reunification services
be terminated for Mother because she was unable to address fully her substance
abuse and past trauma issues in time to reunify. Mother had also been diagnosed with alcohol
and cocaine abuse, Post Traumatic Stress Disorder, Schizoid Personality
Disorder, and self-isolation. She had a
history of irritability and aggression which make her a risk of being a danger
to others.
Aunt was prepared
to adopt Minor should reunification fail.
After
a contested hearing, the juvenile court found the Department had made
reasonable efforts to provide Mother with reunification services, but Mother
had not made substantial progress. The
court continued Minor’s placement with Aunt.
The court found there was not a substantial probability that Minor could
be returned to Mother’s care within the next six months; terminated
reunification services; and set a hearing under section 366.26 to implement a
permanent plan.
In
its report for the section 366.26 hearing, the Department recommended adoption
as the permanent plan for Minor. The
Department recommended Mother’s and Father’s parental rights be terminated, and
Minor be adopted by Aunt.
At
the hearing, counsel for both parents objected to the termination of parental
rights, but conceded there were no valid legal arguments to contest the
termination. The parents did submit
information, primarily through statements of counsel, regarding further progress
with issues that led to the dependency.
The
juvenile court found clear and convincing evidence that Minor would be adopted
and terminated the parental rights of both parents.
II. DISCUSSION
Both parents
appeal. Mother formally raises one issue
and Father joins in her opening brief.
Mother
argues the juvenile court should have made further efforts to help her find
subsidized housing so that she could make a home with Minor. The exact nature of this argument is not
entirely clear. It appears to speak more
to the adequacy of reunification services, which are not at issue at a
termination hearing and which Mother apparently did not challenge, rather than
the validity of termination of parental rights.
It also is not entirely clear whether this precise issue was raised
below.
In
any case, the parents conceded below
that there was no legal ground to challenge the validity of the termination of
their parental rights. Furthermore, once
the juvenile court found Minor was adoptable, the parents did not try to show
that any of the statutory exceptions to termination applied. (§ 366.26, subd. (c)(1);
922, 936.) Thus, this appeal is without
merit.
III. DISPOSITION
The
order terminating Mother’s and Father’s parental rights is affirmed.
______________________
Marchiano, P.J.
We concur:
______________________
Dondero, J.
______________________
Banke, J.
dates are in 2010 unless otherwise indicated.
All statutory citations are to the Welfare and Institutions Code unless
otherwise indicated.
purports to raise an ICWA issue, but does not do so as a formal argument under
an argument heading, but in a paragraph in her combined statement of the case
and facts. More importantly, Mother does
not support this purported argument with any legal authority―as such, we
will not consider it.
