In re Joe T.

Filed 6/14/06 In re Joe T. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from the orders of the Superior Court of Los Angeles County. Stephen Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

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

Raymond G. Fortner, County Counsel, Larry Cory, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

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Jose T. (father) appeals from an order denying his petition under Welfare and Institutions Code section 388^[1] for return of Joe T. to his custody and an order under section 366.26 terminating parental rights. Father contends the denial of his section 388 petition was an abuse of discretion and the parental rights termination order was an abuse of discretion and violated due process. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Joe was born to Yazmin M. (mother)^[2] and father in December 2002. In January 2003, mother left Joe in father's custody. Father had a lengthy criminal history. He engaged in forced sexual intercourse or other lewd acts with three of Joe's maternal half-siblings. On November 19, 2003, father was arrested and charged with transportation or sale of a controlled substance. At the time of his arrest, father was on probation for a May 2002 conviction and had proceedings pending in two additional criminal cases. Joe was placed in foster care through a foster family agency, and a dependency petition was filed against father and mother. On December 5, 2003, the dependency court ordered the Department of Children and Family Services (the Department) to provide family reunification services. Father was given a three-year probationary sentence and released from jail on February 27, 2004.

On June 18, 2004, Joe was declared a dependent of the court based on sustained allegations under section 300, subdivisions (b), (d), and (j)--failure to protect, substantial risk of sexual abuse, and abuse of a sibling. Custody was taken from father, reunification services were ordered, and father was ordered to complete a parenting program, individual counseling, and a sex abuse treatment program. The dependency court awarded father monitored visits of at least two hours, two times per week, and ordered the Department to allow unmonitored visits when appropriate.

After 18 months of unsuccessful reunification services, the dependency court terminated reunification services on June 8, 2005. Father had completed fewer than half of the 52 sessions required by each of his rehabilitation programs. Despite the efforts of the dependency court, the Department, and the foster family agency, father was still having only monitored visits with Joe because father had not completed his programs and was under house arrest.^[3] The dependency court set the matter for a section 366.26 hearing on October 7, 2005, and continued monitored visitation twice a week. Father did not seek review of these orders.

After August 2005, father agreed that visits with Joe would be reduced to once weekly, because he was unable to visit on both scheduled visiting days. Joe's foster parents wanted to adopt Joe. Joe was very secure in his foster home and lovingly attached to all members of his foster family.

On October 7, 2005, the day of the section 366.26 hearing, father filed a petition under section 388 asking the dependency court to modify the 18-month review hearing orders by ordering Joe's return to his care, further reunification services, or placement of Joe with a â€