In re Anthony S.

Filed 1/31/07  In re Anthony S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            APPEAL from the Superior Court of San Bernardino County.  David Cohn, Judge.  Affirmed.

            William Hook, under appointment by the Court of Appeal, for Defendant and Appellant.

            Dennis E. Wagner, Interim County Counsel, and P. Joanne Fenton, Deputy County Counsel, for Plaintiff and Respondent.

            Michael D. Randall, under appointment by the Court of Appeal, for Minor, Anthony S.

            John L. Dodd, under appointment by the Court of Appeal, for Minor, Rebecca A.

            Appellant Debra S. (mother) appeals from a Welfare and Institutions Code section 366.26^[1] order terminating her parental rights to her daughter, Rebecca, and son, Anthony.  Mother argues that:  1) the juvenile court abused its discretion in denying her section 388 petition; 2) the court erred in selecting adoption as Rebecca's permanent plan because the sibling relationship exception applied (§ 366.26, subd. (c)(1)(E)); and 3) there was insufficient evidence to support the court's finding that Rebecca was likely to be adopted, since she had a serious medical condition.  We affirm the order.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

            Mother had a total of seven children--Teresa, Francisco, Kimberly, James, Brian, Rebecca, and Anthony (the children).  This appeal only concerns Rebecca and Anthony.  On April 28, 2003, the Department of Children's Services (DCS) filed a section 300 petition on behalf of Rebecca, who was six years old at the time, alleging that Rebecca came within the provisions of subdivision (g) (no provision for support) and subdivision

(j) (abuse of sibling).  (Anthony had not been born yet.)  Specifically, the petition alleged that Rebecca had no support because mother was incarcerated on charges of child endangerment (Pen. Code, § 273a) and contributing to the delinquency of a child (Pen. Code, § 272), and Rebecca's father (father)^[3] was incarcerated on charges of lewd acts with a child.  (Pen. Code, § 288, subd. (a).)  The petition alleged that Rebecca's siblings, Kimberly and Teresa, had been sexually abused by mother's live-in boyfriend (father).  The court detained Rebecca and her siblings in foster care.

            Jurisdiction/disposition

            In a jurisdiction/disposition report, the social worker reported that Rebecca was born with a third degree heart block and had a pacemaker.  She was clearly developmentally and educationally delayed.  She also had poor language skills for her age.  A psychologist later evaluated her and opined that she possibly had autism or mental retardation.

            The social worker also described the home where mother and the children were living.  The children were allowed to smoke cigarettes, drink alcohol, miss school, run the streets, and stay at home unsupervised.  Furthermore, mother's home was filthy.  Kimberly, who was 16 years old, was allowed to live with her adult boyfriend and was five months pregnant.  Mother did not feel there was anything wrong with the way her family was living and did not accept that she needed to set boundaries for her children.

            The social worker prepared a case plan for mother that required her to participate in individual counseling services, participate in an attachment/bonding class to gain the skills to appropriately bond with children, participate in sexual abuse counseling, and participate in a parenting education program.

            In an addendum report dated June 6, 2003, the social worker reported that visits with the children were chaotic.  James and Brian yelled, screamed, hit the other children, and tried to run the hall.  Mother ignored the children.  Rebecca walked around the room asking everyone for a hug, but was ignored most of the time.  A psychologist recommended that continued visitation would be emotionally detrimental to the children.

            The social worker further reported that mother was given referrals for parenting classes and counseling services on April 30, 2003.  Mother told the social worker that she did not understand why her children were taken from her and insisted that she had done nothing wrong.

            In another addendum report dated July 18, 2003, the social worker reported that mother had not followed up with the referrals given to her.  In fact, she had not made any efforts to work on her case plan goals, and she continued to deny any wrongdoing.

            A contested jurisdiction/disposition hearing was held on July 21, 2003, but was continued to July 28, 2003.  The court found that Rebecca came within section 300, subdivision (j), declared Rebecca a dependent child of the court, and placed her in the custody of DCS.  The court ordered mother to participate in her case plan.  The court also ordered supervised visitation to be a minimum of once per week.  A six-month review hearing was set for January 30, 2004.

            On August 5, 2003, Anthony was born.  The hospital staff called DCS and informed DCS that mother had failed to obtain appropriate prenatal care, admitted using methamphetamine during her pregnancy, and failed to bond with or show any concern for the baby.  Anthony was born with intra-uterine growth retardation, which could have been discovered early during the pregnancy.  Anthony was born prematurely and was considered to be at high risk for future medical issues.  Mother was given an opportunity to ensure the return of Anthony to her care upon his discharge from the hospital by obtaining an appropriate food supply, cleaning and repairing her house to make it suitable for Anthony (his room had a broken window), applying for WIC, drug testing, and visiting or calling the hospital to check on Anthony's progress.  Mother made only minimal efforts to clean the house, and failed to comply with any of the other terms.  Thus, DCS filed a section 300 petition on Anthony's behalf on September 4, 2003, alleging that Anthony came with section 300, subdivision (b) (failure to protect).  The petition alleged that mother failed to get prenatal care, that she used drugs during her pregnancy, that she had a substance abuse problem that interfered with her ability to parent, that she did not have an adequate home for Anthony, and that she had an open family reunification case with her other five children, in which she only participated in a cursory manner.  The court detained Anthony in foster care.

            In an addendum report dated September 10, 2003, the social worker reported that there were still concerns that mother lacked attachment and bonding with Anthony, as evidenced by her cursory visits with him in the hospital.  Mother also smoked inside her home because she was admittedly too lazy to go outside.  The social worker explained the seriousness of respiratory problems in children, but mother did not appear to understand.  The social worker contacted mother's therapist and found out that mother had only had three visits since starting counseling in June 2003.  The social worker also found out from mother's group therapist that she had only been to one session since starting in July 2003.  The social worker stated that mother was resistant to DCS intervention and consistently expressed her lack of understanding as to why Anthony or any of her children were in protective custody.

            The social worker prepared another reunification plan for mother in Anthony's case.  The plan required mother to participate in individual counseling to discuss issues of anger management, parenting, self-esteem, and self-confidence, participate in an attachment/bonding class, participate in sexual abuse counseling, participate in a psychiatric/psychological evaluation, participate in a parenting class, and complete a STOP (Services Targeted on Prevention) Program.

            Anthony's jurisdiction/disposition hearing was held on October 31, 2003.  The court found that Anthony came within section 300, subdivision (b)--specifically that mother failed to get prenatal care for Anthony, that mother did not have an adequate home for Anthony, and that mother had a family reunification case with her other children and was barely participating in the case plan.  The court declared Anthony a dependent child, maintained him in foster care, and ordered mother to participate in the case plan.  The court set a six-month review hearing for April 30, 2004.

            Six-month Status Review Reports and Hearings

            As to Rebecca's case, the social worker prepared a report for her six-month review set for January 30, 2004.  The social worker reported that mother was attending classes and counseling sessions and was making good progress.  The social worker also stated that Rebecca seemed to have adjusted quickly to her foster home and expressed no grief upon being removed from mother's home.  At the six-month review hearing, the court found that mother had made minimal progress and ordered her to continue participating in her case plan and to drug test.  The court continued Rebecca as a dependent child.  The 12-month review hearing was set for July 30, 2004.

            Anthony's social worker prepared a report for his six-month review hearing.  She reported that mother was still having difficulty bonding with Anthony.  During visits, the social worker had to prompt mother to hold Anthony facing her instead of facing away.  In contrast, Anthony was bonding and developing attachments with his foster family.  The social worker further reported that mother had been participating in counseling and had completed a 15-hour parenting program.  It was suggested that mother participate in a two-week intensive program at the Bonding Center to help her bond with Anthony.  Mother complained about what she would and would not do, and only attended the first day of the program.  She continued to complain about DCS taking her children and stated that she was never going to bond with Anthony because DCS took him away from her.  The social worker observed that mother consistently ignored Anthony's needs when they were together.  The social worker also noted that mother still did not understand why Anthony or her other children were taken from her.  At Anthony's six-month review hearing on April 30, 2004, the court continued Anthony as a dependent child and ordered mother to participate in the case plan.  The court set a 12-month review for October 29, 2004.

            12-month Status Review Reports and Hearings

            Rebecca's social worker prepared a status review report for her 12-month review hearing.  Mother had completed two parenting courses, but was inconsistent in attending her counseling sessions.  She was referred to the STOP Program, to help with transitioning the children back into her home; however, she made excuses as to why she could not participate.  The social worker was concerned about Rebecca's visits with mother on the weekends.  One weekend, Rebecca returned to her foster home with bruises.  Rebecca said that her brother Brian (who was now living with mother) pushed her.  Mother confirmed with the social worker that Brian had pushed Rebecca.  Mother continued to question why DCS took her children and stated that she had raised children for 18 years.  Mother failed to display the skills she had learned in her parenting courses.  The 12-month review hearing was held on September 17, 2004.  The court ordered mother to participate in services for six more months.

            Anthony's social worker prepared a status review report for his 12-month review hearing, and reported that mother was on probation for a violation of Penal Code section 273a (willful cruelty to a child).  (Brian had been taken into custody when he was found on the streets without parental supervision.)  The court ordered mother to be on probation for three years and to complete a 52-week counseling class on child abuse.  Regarding mother's requirements in Anthony's case, the social worker reported that mother had completed the attachment/bonding course but still had bonding and attachment problems; she continued to be unaware of Anthony's emotional needs and would become defensive when given suggestions on how to bond with him.  During visits, mother needed prompting to interact with him.  Mother also met the parenting class requirement, but had not completed her counseling or the STOP Program.  Overall, mother's attitude still had not changed, as she continued to question why DCS took custody of Anthony and refused to accept any responsibility for his removal.  The 12-month hearing was held on October 29, 2004, and the court continued the matter to April 29, 2005, granting mother six more months of services.

            18-month Status Review Reports and Hearings

            Rebecca's social worker prepared a status review report for her 18-month review hearing.  The social worker reported that mother appeared to have a limited understanding of Rebecca's extensive medical needs and tended to minimize her condition.  Rebecca was a medically fragile child and had been diagnosed with complete heart block and Attention Deficit Hyperactivity Disorder.  She had a pacemaker, and she was developmentally delayed.  The social worker opined that mother was not ready to provide adequate care for Rebecca since she had, in the past, failed to protect her from her older siblings.  Mother was having unsupervised visits with Rebecca.  However, the visits were changed back to being supervised because Rebecca was being abused by Brian.  Although mother was aware of the abuse, she failed to protect Rebecca.

            The social worker believed that, despite Rebecca's condition, she may be adoptable.  Her current foster parents were not interested in adopting her, but were willing to keep her long term.  The social worker recommended that mother's reunification services be terminated and the permanent plan of long-term foster care be implemented.

            Rebecca's 18-month hearing was held on February 2, 2005.  The social worker testified that mother had failed to complete her case plan by failing to fulfill her counseling and STOP Program requirements.  The social worker further testified that, even though mother had completed several parenting classes, she still could not parent adequately.  The social worker stated that mother had to be repeatedly prompted to interact with her children at visits, and that she was self-absorbed.  Another social worker testified that mother had only attended visits sporadically.  In the month of December 2004, she missed three out of four visits and failed to call to cancel.  The social worker opined that Rebecca would be at risk if returned to mother because of being medically fragile.  The social worker was not sure if mother understood the extent of Rebecca's condition.  Mother testified at the hearing, and stated that she never did anything wrong and that her children should not have been removed from her care.  The court found that mother had failed to complete her case plan and ordered reunification services to be terminated.  The court further ordered long-term foster care to be the permanent plan and set a post permanency review hearing for August 2, 2005.

            Anthony's social worker prepared a report for his 18-month review and reported that mother had still failed to bond with Anthony and had not visited him in four months.  The social worker further reported that mother only minimally participated in the STOP Program, and, thus, those services were terminated.  Furthermore, mother's attitude had not changed, as she still denied responsibility for Anthony's removal.  Thus, the social worker recommended that reunification services be terminated, that a section 366.26 hearing be set, and that adoption be the permanent plan.

            A contested 18-month review hearing was held on September 1, 2005.  The court terminated mother's reunification services and set a section 366.26 hearing for December 29, 2005.

            Change of Recommendation for Rebecca

            On April 19, 2005, the social worker in Rebecca's case filed a section 388 petition modifying the recommendation from long-term foster care to adoption.  The petition alleged that Rebecca's foster parents now wanted to adopt her.  In a review report, the social worker stated that Rebecca had been in her current placement with her prospective adoptive parents since May 9, 2003.  Rebecca was attached to her foster parents and was comfortable and secure with them.  Rebecca stated that she liked living in her placement.  The prospective adoptive parents understood Rebecca's special needs and stated that she would likely need a new pacemaker in the future, as she grew.  The prospective adoptive parents also understood that Rebecca would be developmentally delayed into adulthood, and they accepted that she would likely always need their help.  They were eager to adopt Rebecca.

            The social worker reported that Rebecca had a strong attachment to her siblings, and she discussed the possibility of Rebecca maintaining contact with them after adoption.  The prospective adoptive parents were concerned that some siblings had been abusive toward Rebecca, but said they would be willing to maintain contact with those siblings whose behavior was appropriate.

            Section 366. 26 Hearings and Section 388 Petitions

            On November 11, 2005, mother contested Rebecca's section 366.26 hearing, and the matter was continued to January 5, 2006.  Rebecca's social worker prepared a section 366.26 report, recommending that mother's parental rights be terminated and adoption be implemented as the permanent plan.

            Similarly, Anthony's social worker prepared a section 366.26 report recommending that the court terminate mother's parental rights and free Anthony for adoption.  On December 29, 2005, mother contested Anthony's section 366.26 hearing, and the matter was continued to January 30, 2006.  Rebecca's section 366.26 hearing was later continued to January 30, 2006, as well.

            On January 5, 2005, mother filed a section 388 petition with regard to both Rebecca and Anthony, requesting the court to return them to her custody.  As to changed circumstances, mother alleged that:  1) she had completed her reunification plan, including three parenting classes, the STOP Program, and a psychological evaluation, and that she had resolved her criminal proceedings; 2) she was currently participating in intensive counseling with Jeffrey Foster; 3) she had a legal income consisting of SSI benefits and survivor benefits that she received on behalf of her son James, whose father was deceased; 4) she lived in a five-bedroom house (since 2002); 5) her six oldest children were a sibling set when they were removed from her custody, and were bonded; if Rebecca were adopted there would be no post-adoption contact between them, and that would be detrimental to Rebecca; 6) although Anthony did not grow up with his older siblings since he was born after they were removed, he was still a part of the sibling set and should not be separated from them; 7) mother had visited Anthony and Rebecca on a regular basis since their removal and had a strong bond with them; 8) Rebecca told mother that she loved her and wanted to return to her; 9) mother had had five of her children returned to her; 10) Teresa, Kimberly, Francisco, James, and Brian told mother that they objected to Rebecca and Anthony being adopted; 11) mother believed it was in Rebecca's and Anthony's best interest to be returned home since she had a good relationship with them, and since she believed they would prefer to live in her home; and 12) she accepted responsibility for her actions.

            On January 17, 2006, James filed a section 388 petition requesting the court not to terminate mother's parental rights to Rebecca and Anthony.  He alleged that he was bonded to Rebecca and that Anthony was part of a sibling set.  Brian filed a similar motion.

            On February 22, 2006, after hearing the testimonies of several social workers, the court denied mother's section 388 petition, denied James's and Brian's section 388 petitions, terminated mother's parental rights as to Anthony and Rebecca, and selected adoption as the permanent plan for both of them.

ANALYSIS

I.  The Court Properly Denied Mother's Section 388 Petition

            Mother argues that the court abused its discretion in denying her section 388 petition.  We disagree.

            A.  Standard of Review

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