In re T.P.

Filed 8/3/06 In re T.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Riverside County. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

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

No appearance for Plaintiff and Respondent.

No appearance for Minors.

Diana P. (Mother) is the mother of T.P. (born 1994), B.P (born 1996), M.P. (born 1998), and D.P. (born 2001). She appeals from an order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] Mother's husband, Donald P. (Father), is the father of the children. Mother and Father were married in 1993, and they have had a history with the Department of Public Social Services (the Department) since 1995.

In 2000, Father was arrested and pled guilty to molesting a 13-year-old girl. He was required to register as a sexual offender, was on probation, and was living with Mother and their four children in May 2002 when the Department received a report that the children were neglected and living in an unsanitary home. In June 2002, the Department filed a juvenile dependency petition under section 300, subdivisions (b), (d), and (j). The petition alleged domestic violence between the parents, inappropriate physical discipline of the children, Mother's failure to protect the children from being sexually abused by Father, and Mother knew or should have known the children were in danger of being sexually abused by Father.

The juvenile court adjudged the children dependents of the court and removed them from Mother and Father's custody. In July 2002, the parties stipulated to allowing Mother to have weekend visits with the children on condition the Father would not be present.

At the July 2002, jurisdiction/disposition hearing, Mother and Father waived their rights and the court declared the children dependents of the court, ordered the children removed from Father's custody, and placed them in Mother's custody under a family maintenance plan.

In April 2003, Father was arrested for physically abusing his children.^[2] His probation was revoked. During an interview, T.P. disclosed Father had been living with Mother at the children's home and may have sexually abused T.P. The home and the children were dirty. On the positive side, the parents had jobs and the children were bonded to them.

In June 2003, the Department filed a section 387 petition alleging that Mother had failed to benefit from services and had allowed Father to live in her home and to bathe the children. The Department recommended out-of-home placement with frequent and liberal supervised visitation. It was unclear whether the Child Welfare Act (ICWA) applied. The court found true the allegations and ordered the children detained.

At the combined sections 387 and 366.21, subdivision (f) hearing in July 2003, the parents waived their rights as to the section 387 petition and the court found true the amended petition allegations. The court terminated reunification services, set a section 366.26 hearing, and gave the parents writ advice in open court. Adoption was selected as the appropriate plan.

In August 2003, T.P. disclosed to her foster mother that Father had molested her. During an interview in September 2003, both T.P. and B.P. stated that Father had sexually molested them. The Department had been unable to locate an adoptive home and needed more time. Upon the Department's ex parte application, the trial court terminated Father's right to visit B.P.; however, it continued visitation for the parents with the other children. In the November 2003 addendum report, the Department recommended continuing the section 366.26 hearing for 60 days to complete the adoption assessment.

In April 2004, the Department filed an ex parte application to terminate Father's visits with T.P. and to reduce his visitation with the boys to once a month; Mother would be allowed to visit all the children once a month. The court ordered Father's visitation with T.B. be modified to one time per month; however, his visitation with the remaining children was to continue as previously ordered.

By May 2004, an adoptive home had not been found for the children. They were considered hard to place because they were a large sibling group. The Department reported that Mother claimed she was working full time and Father had moved out of her home in March pursuant to the court's order. However, Mother requested the court reconsider its order because she had no intention of divorcing Father, who was on summary probation due to his recent child endangerment conviction and was on house arrest until July 2, 2004. During a conversation in May, Mother told the social worker that she did not believe Father molested her girls. She believed the girls were lying. The matter was continued for 120 days.

In July 2004, Mother filed a section 388 petition seeking return of the children under a family maintenance plan, or, in the alternative, reinstatement of family reunification services. Mother claimed that she had participated in services and she had been living alone since Father moved out in March 2004. Father also filed a section 388 petition. He requested return of the children to Mother based on his moving out of Mother's home.

In September 2004, the Department filed an ex parte request to change Mother's visits with the girls from weekly to monthly because an adoptive home had been found out of county. The boys were placed together in a home in San Bernardino, and the girls were placed in a home in Northern California. The children had bonded with their adoptive families. The siblings continued contact by telephone and letters. The Department confirmed Mother and Father were living together in a motel; however, they told their therapist they were not living together but were planning to buy a mobile home. An addendum report prepared for the September 22, 2004, hearing recommended termination of parental rights.

At the combined sections 366.26 and 388 hearing in September 2004, it was stipulated Mother would testify she was living alone in a hotel, had separated from Father, and had no intention reuniting with him. After finding no substantial change of circumstances or a showing that a change of order would be in the best interest of the children, the trial court denied the section 388 petitions. During the section 366.26 hearing, Mother and Father requested a plan of guardianship so that the children could continue seeing each other, and Mother requested continuing visitation. In accordance with the Department's recommendations, the court terminated parental rights and ordered mediation regarding post-adoption sibling visitation. In November 2004, the parents appealed. The May 23, 2005, review report recommended the children remain in their current placement until the appeal process was terminated. In July 2005, the boys were removed from their fost-adopt parents, who had decided not to adopt them, and they were placed with their siblings. On August 26, 2005, this court reversed the termination order for failure to comply with ICWA as to Father.

The November 23, 2005, status review report stated that the children were residing together in an adoptive home. Based on this court's opinion, the Department sent notices to the Bureau of Indian Affairs (BIA) and Indian Child Welfare Services. Father had not identified the tribe from which he derived his Indian heritage. The children were doing well and the foster mother was committed to adopting them. The adoption home study was complete. At the November 23, 2005, hearing the court ordered the Department to address the allegations of physical and sexual abuse in a report. Prior orders were continued.

The December 5, 2005, section 366.26 report recommended terminating parental rights and selecting adoption by the children's caretaker as the permanent plan. The children continued doing well and adjusting to being together. The section 366.26 hearing was continued.

The January 10, 2006, addendum report stated that the investigation regarding M.P. and D.P.'s allegations of physical abuse by the previous caretakers had been concluded and there was no evidence to support such allegations. The section 366.26 hearing was continued because of incomplete ICWA notices.

The February 9, 2006, addendum report provided that Father â€