In re Mark C.

Filed 1/12/07  In re Mark C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 orders of the Superior Court of Los Angeles County, Jacqueline Lewis, Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Dismissed.

            Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Nicole M.

            Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant Mark C.

Raymond G. Fortner, Jr., Los Angeles County Counsel, Larry Cory, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel for Plaintiff and Respondent.

            Nicole M., the mother, and Mark C., the presumed father, appeal from a parental rights termination order entered pursuant to Welfare and Institutions Code,^[1] section 366.26.  The mother has also appealed from the denial of a section 388 modification petition.  Appointed appellate counsel have notified us pursuant to In re Sade C. (1996) 13 Cal.4th 952, 978-983, they have been unable to find any arguable contentions.  We notified the parents they had 30 days to submit in writing any contentions or arguments they desired us to consider.  The father has not responded.  The mother has submitted contentions she wishes us to consider which we will discuss shortly.  We dismiss both appeals. 

            On July 14, 2005, the Los Angeles County Department of Children and Family Services (the department) filed an initial petition alleging 10-year-old Christopher C. and 12-year-old Mark C. came within the jurisdiction of the juvenile court under section 300.  On September 13, 2005, the department filed a second amended petition.  The second amended petition was sustained as to the parents under section 300, subdivisions (a), (b), (d), (i), and (j).  The sustained allegations were that the children were at risk because:  the mother physically abused the children and imposed excessive punishment on them causing them to suffer unreasonably; the father, with knowledge of the mother's physical abuse, failed to protect the two children; the mother had engaged in numerous physical altercations with an unrelated adult, Mona, in the children's presence; the mother and a maternal aunt, Danielle M., were involved in a violent physical altercation in the children's presence; the father physically abused the children, including kicking Christopher with a steel-toed boot and hitting Mark on the head with the buckle-end of a belt; the mother, who knew of the father's abuse, failed to protect the two children; the father had a history of illicit drug use and was a current heroin abuser; he was frequently under the influence of a controlled substance while caring for the children despite a court order that he complete a substance abuse rehabilitation program; the mother, with knowledge of the father's drug use, failed to protect the children; the father injected heroin in the home in the children's presence; the father exposed the children to cooking heroin; the children had access to illicit drugs and drug paraphernalia in the home; the father drove the youngsters while he was under the influence of heroin; the mother also had a history of illicit drug use and was a current methamphetamine abuser; the mother had a history of mental and emotional problems, including violent aggressive behavior and homicidal ideation; the mother had been hospitalized in a psychiatric facility for evaluation and treatment; the father had been convicted of indecent exposure and three times for being under the influence of a controlled substance; the parents had sexually abused the children on a regular basis for years; the father had sexually abused Christopher almost daily for five years; the father had sexually abused Mark about ten times a month for two years; the mother had sexually abused Christopher on a monthly basis for five years, and had sexually abused Mark about ten times a month for two years.  The juvenile court found clear and convincing evidence no reunification services should be offered to the parents because of:  severe sexual abuse; severe physical harm; and detriment to the children.  (§ 361.5, subds. (b)(6) & (e)(1).)  

            Substantial evidence, including the children's testimony,  supported the jurisdictional findings.  (In re Dorinda A. (1992) 10 Cal.App.4th 1657, 1663; In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)  The children were diagnosed as suffering from post traumatic stress disorder.  The two children were placed with neighbors who had known the two brothers since they were very young and were close with them.  The two neighbors were the prospective adoptive parents.  The prospective adoptive father was related to the father.  The prospective adoptive parents wanted to adopt the boys.  Criminal charges were brought against the parents, both of whom were in custody at the time of the section 366.26 hearing.  On August 29, 2006, the juvenile court terminated parental rights.  The permanent plan was for adoption by the prospective adoptive parents.  On October 31, 2006, the mother and the father were sentenced to three and four years in state prison respectively.

            We appointed separate counsel to represent the mother and the father on appeal.  Both counsel advised this court, under In re Sade C., supra, 13 Cal.4th at pages 978-983, they were unable to file opening briefs on the merits.  On October 17, 2006, we advised the father by letter he had 30 days within which to submit in writing any contentions or arguments he wished this court to consider.  We have not received any response from the father.  On November 3, 2006, we likewise advised the mother she had 30 days within which to submit in writing any contentions or arguments she wished this court to consider.  The mother responded by letter dated November 4, 2006. 

            The mother does not claim:  the children are not adoptable; termination of parental rights would be detrimental to the children; or an exception to the termination of parental rights exists under section 366.26, subdivision (c)(1).  Rather, the mother objects that the juvenile court failed to consider the outcome of criminal charges brought against the parents.   The section 361.5, subdivision (b)(6) and (e)(1) findings constituted a sufficient basis for termination of parental rights absent a compelling reason for determining termination would be detrimental to the children.  (§ 366.26, subd. (c)(1).)  The mother's letter fails to present any factual or legal issues which provide a basis for setting aside the parental rights termination order.  Her contentions are frivolous.  As noted, the mother also appealed from the denial of her section 388 petition.  However, she has not raised any issue on appeal with respect to that order.  As a result, any issue that could have been raised as to that order has been forfeited.  (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70, disapproved on another point in Bailey v. County of Los Angeles (1956) 46 Cal.2d 132, 139; Sanchez-Scott v. Alza Pharmaceuticals (2001) 86 Cal.App.4th 365, 368, fn. 1.) 

            We have examined the entire record.  We are satisfied that appellate counsel have fully complied with their responsibilities and no arguable issues exist.  (In re Sade C., supra, 13 Cal.4th at p. 959.)  When no contentions are raised or only frivolous arguments are posited, the correct course of action is to dismiss a dependency appeal.  (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196; In re Sade C., supra, 13 Cal.4th at p. 994.) 

            The appeals are dismissed.

                                                NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                                TURNER, P.  J.

We concur:

            MOSK, J.

            KRIEGLER, J.

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