In re Nathan M.
Filed 2/9/07 In re Nathan M. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
In re NATHAN M., a Person Coming Under the Juvenile Court Law. | |
MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. RITA H., Defendant and Appellant. | F050931 (Super. Ct. No. 27458)
O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruben E. Castillo, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Rita H. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her infant son Nathan M.[1] She contends the court erred: first, by denying her petition for modification (§ 388); and second, by not finding termination would be detrimental to the child. On review, we will affirm.
PROCEDURAL AND FACTUAL HISTORY
At his birth in early February 2006, Nathan tested positive for drugs. He was appellant's second child to be born with a positive toxicity screen. Appellant, having used methamphetamines since 1998, gave birth in September 2004 to Tabitha who tested positive for amphetamines. As a result, respondent Merced County Human Services Agency (agency) detained the infant girl and dependency proceedings ensued. Despite court-ordered reunification services, including substance abuse treatment, appellant failed to reunify with Tabitha. In August 2005, the Merced County Superior Court terminated parental rights as to Tabitha. By this time, appellant was pregnant with Nathan and, despite the termination of her rights to Tabitha, still abused drugs. She admitted using methamphetamine as recently as January 31st, less than a week before Nathan's birth.
When Nathan tested positive for methamphetamine, the agency detained him as well and initiated the underlying dependency proceedings. Nathan's father also had a lengthy history of substance abuse and was then participating in a drug program offered through Proposition 36. He admitted using methamphetamine on January 31st as well.
The Merced County Superior Court thereafter exercised its dependency jurisdiction (§ 300, subd. (b)) over Nathan, adjudged him a dependent child and removed him from parental custody. The court, however, denied both parents reunification services. It found by clear and convincing evidence that services were inappropriate pursuant to section 361.5, subdivision (b)(10) (the parents previously had court-ordered services terminated for Nathan's sibling, because they failed to reunify with the sibling, and they subsequently had not made a reasonable effort to treat the problems that led to the sibling's removal) and (b)(11) (the parents previously had their parental rights over Nathan's sibling permanently severed and they subsequently had not made a reasonable effort to treat the problems that led to the sibling's removal). The court in turn set a section 366.26 hearing to select and implement a permanent plan for Nathan.
The agency later recommended that the court find Nathan adoptable and order parental rights terminated. The agency had placed Nathan in the same foster home in which Tabitha had been placed for adoption. The foster parents were committed to adopting Nathan as well.
A week before the scheduled section 366.26 hearing, appellant petitioned under section 388 for reunification services or Nathan's return to her custody. She alleged her circumstances had changed in that she had been clean and sober since April 6, 2006. On April 20, 2006, one month after the court's dispositional hearing, she had enrolled in a residential substance abuse program known as Tranquility Village (Tranquility). She was an active participant in Tranquility's programs and also attended outside Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings. She also claimed there was space available for Nathan to reside at Tranquility. Claiming she was capable of caring for Nathan, she further alleged that a change in the court's orders would be in the child's best interest. The court set the hearing on the petition at the same time as the section 366.26 proceeding. The father filed a similar petition for modification.
At the hearing, appellant testified on her behalf. She was currently living in the Mother's Home at Tranquility, where residents had their children with them. She was also â€
