In re I.N.

Filed 9/29/06 In re I.N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

No appearance for Minors.

Mari B. (Mother) appeals from an order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] She further challenges an order denying her section 388 petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

I.N. (born 2002) and T.N. (born 2001) came to the attention of the Department of Children’s Services (the Department) in April 2003. Mother had left the children at the paternal grandmother’s home with only a few diapers and very little formula and she had not returned to retrieve them. Mother could not be located. Dependency petitions were filed on April 15, 2003, alleging the parents’ failure to protect and support under section 300, subdivisions (b) and (g). It was also alleged that Mother suffered from a substance abuse problem. None of the boxes regarding the Indian Child Welfare Act (ICWA) was checked.

At the April 2003 detention hearing, the children were tentatively detained in foster care. Although the detention report stated that ICWA did not apply, the court ordered the parents to reveal membership in any Indian tribe. The hearing was continued at the parents’ request to allow the Department to verify their new home. On April 18, the children were detained with the father. The court set a combined jurisdiction/disposition hearing for May 19, 2003.

In the jurisdiction/disposition report, the Department recommended that the children be maintained in the care of their parents under the circumstances that the father be the primary caregiver, Mother have visitation rights and be the active daily babysitter, and family maintenance services be provided. The social worker interviewed Mother, who stated that the paternal grandmother’s report that Mother had abandoned the children was not possible. She explained that the paternal grandmother has psychiatric problems. Mother admitted to currently using methamphetamine. At the time of the report, Mother was 18 years old and the father was 19 years old. Mother claimed that her father had physically abused her and that the children’s father verbally abused her. The father admitted to previous substance abuse. He acknowledged that his mother has psychiatric problems and his father previously had a problem with alcohol. The report indicated that ICWA did not apply.

Both parents were present at the jurisdiction/disposition hearing. The allegations that Mother suffered from a substance abuse problem which affected her ability to parent and that she had left the children with an inappropriate caretaker were found to be true. The children were declared dependents to be maintained with their father in the paternal grandfather’s home. A family maintenance program was provided. Mother was to enroll in a drug treatment program. No ICWA findings were made and neither parent revealed any membership in any tribe.

On October 10, 2003, supplemental petitions were filed alleging the parents had absconded with the children. Their whereabouts were unknown. Again, none of the boxes regarding the ICWA was checked. The detention report prepared for the hearing on the supplemental petition stated that Mother had enrolled in a substance abuse program but her attendance was poor. Neither parent had maintained contact with the Department. The parents failed to appear at the detention hearing on October 14, and the court ordered the children removed from their care. No ICWA findings were made. Visitation and reunification services were ordered.

In the jurisdiction/disposition report prepared for the November 19, 2003, hearing, the Department recommended that the allegations in the supplemental petition be found to be true, that the children be placed in foster care, and that no family reunification services be ordered for the parents. The whereabouts of the parents and the children remained unknown. The report stated that ICWA did not apply. At the hearing, the court sustained the allegations in the supplemental petition, terminated reunification services, and ordered longterm foster care as the permanent plan. No ICWA findings were made.

In the status review report dated May 19, 2004, the Department stated that the whereabouts of the children and the parents remained unknown. The parents failed to attend the hearing and the matter was continued for six months. Again, there were no findings concerning ICWA.

By the time of the November 22, 2004, hearing, the Department informed the court that Mother was incarcerated in county jail and the children were living at the maternal grandparents’ home. The matter was continued to the next day when the court ordered the children be placed in longterm foster care. Supervised visitation for the maternal grandparents was ordered. No ICWA findings were made.

By May 2005, Mother was residing with her parents in their apartment, which was not suitable for the children. Mother and her parents planned to file a section 388 petition once they had relocated. The children were described as aggressive and acting out. Mother was visiting the children and they did not suffer from any adverse affects following such visits. On May 24, 2005, the court found no reason to change any prior orders and continued the matter to November 28.

In the November 28, 2005, status report, the Department recommended that a section 366.26 hearing be set to establish a permanent plan of adoption. Mother had not found an appropriate place to live. On July 18, the father arrived for a visit and a conflict started when he said that he wanted to include Mother’s sister, who was now his significant other, in visitation. Until this time, the father’s whereabouts were unknown. Mother continued to visit the children until September 8, 2005. On October 13, the maternal grandmother informed the Department that Mother was in jail for outstanding warrants. The father discontinued contact with the Department and visitation with the children. On October 31, Mother sent a letter from Glen Helen Rehabilitation Center requesting that the children visit with her. The foster mother reported that the children no longer had any behavior problems. The report stated that ICWA did not apply.

On December 5, 2005, the court found that the children’s best interests would be served by not returning them to the parents’ custody, that the plan of longterm foster care was no longer appropriate, and that visitation with the parents was detrimental to the children. The court set a section 366.26 hearing and informed the parents of their writ rights.

On April 7, 2006, Mother filed a section 388 petition. She had completed the Inroads Program during her incarceration at Glen Helen. She had been drug testing daily and was clean and sober for a little less than seven months. She was residing at the Salvation Army and was “in a position to immediately obtain housing and will have income provided by her fiance [sic], James Wagner.” Mother requested that the children be returned to her custody. A hearing on Mother’s petition was set.

In response to the petition, the Department recommended that the court deny Mother’s request. The Department noted that at the time the section 388 petition was filed, Mother had not presented an address to her attorney and had not contacted the Department. Although Mother’s attorney provided the Department with three phone numbers for Mother, the social worker was only able to leave a message, not make phone or face-to-face contact. Although the Department commended Mother for having completed her previous case plan, given her incarceration (due to a dirty drug test for methamphetamine) for four days beginning on April 27, the Department expressed its concern that Mother had not changed her life style. The Department noted that the children were bonded with their caretakers who desired to adopt them.

The section 366.26 report recommended that the adoption by the current caretakers be the permanent plan for the children. The children had bonded with their caretakers with whom they have resided since November 19, 2004. Mother had not visited with the children since September 2005.

The sections 388 and 366.26 hearings were held on May 1, 2006. Mother testified that she had a drug problem that she was working to correct. She was residing in a one-bedroom dwelling with her fiance. Mother did not want her parental rights terminated; however, she acknowledged that she was not ready to have the children returned to her because she still needed “more time to remain sober and get [her] life straight.” The social worker testified. She opined that the children were bonded with the caretakers and that Mother’s progress has been erratic.

The trial court denied Mother’s section 388 petition on the grounds that her recent incarceration “demonstrates . . . that [she has] not resolved the problem that led to the removal of the children” and that she is not ready to have the children returned to her care. The court noted that the children had “simply been in this process for too long” and were “entitled to permanency.” Given Mother’s track record, the court opined that her recent success did not “show any reasonable likelihood that [she would] be able to overcome this problem.”

Regarding the section 366.26 hearing, the court found by clear and convincing evidence that it is likely the children will be adopted and that termination of all parental rights is in their best interests. The court then terminated the rights of Mother and the father and selected adoption as the permanent plan.

II. DISCUSSION

Mother has appealed, and at her request, we appointed counsel to represent her. Counsel for Mother 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 a statement of the case and facts and asking this court to undertake an independent review of the entire record.^[2]

We provided Mother with an opportunity to file a personal supplemental brief, but she has filed none.

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 judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

MILLER

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Counsel for Mother questions: (1) whether there was sufficient evidence to support the order denying Mother’s section 388 petition; (2) whether there was sufficient evidence that an inquiry was made as to whether the children were Indian children; (3) whether there was sufficient evidence to support the finding that the children would be adopted; and (4) whether there was sufficient evidence to support a finding that the children would not benefit from continued contact with Mother.