In re Vincenzo

Filed 5/30/06  In re Vincenzo C. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

            Appellant, the father of a dependent child, appeals from an order terminating his parental rights.  We affirm.

Background

            The child was born in May 2004.  The child's mother was 16 years old, with a history of methamphetamine use, bipolar disorder and attempted suicide.  The mother had been referred to the Contra Costa County Bureau of Children and Family Services (the Bureau) following a report that her own mother, the child's maternal grandmother, had been neglecting her.  The father, appellant, was in his early 30's, and was in San Quentin State Prison at the time of the child's birth.  He has six children by four women.  Two of his other children are involved with the Bureau and had been placed with his mother, the paternal grandmother.  The Bureau, determining that the maternal grandmother's home was not appropriate, made arrangements for the mother and the child to move in with the paternal grandmother. 

            The father was released from prison in July, when the child was two months old.  After the father got into an argument with the paternal grandmother, the mother took the child and left the paternal grandmother's home.  The Bureau then filed a Welfare and Institutions Code section 300[1] petition alleging failure to protect the child.  While the petition was pending, the mother and the child were placed in a foster home.  In mid-August, the foster mother reported that the mother had run away, leaving the child with the foster mother.  The child then was placed in another foster home, and the mother was placed at a group home.  The mother ran away from the group home and returned to the maternal grandmother's home. 

            On October 1, 2004, the parties stipulated that the court had jurisdiction over the child, and a case plan was developed.  The Bureau reported that neither grandmother could provide an appropriate placement.  The maternal grandmother had a long history of drug abuse.  There were concerns that the paternal grandmother could not or would not prevent the father from visiting while he was under the influence of drugs.  By March 2005, the child was placed with attentive foster parents who were dedicated to providing for him and ensuring his well-being.  Neither parent had participated in the case plan to any significant degree.  As of December 2004, the father again had been incarcerated at San Quentin State Prison, and the mother, who was pregnant, had been arrested at the scene of a car collision and was found to be under the influence of marijuana.  The court ordered termination of reunification services, and set the matter over for a section 366.26 hearing. 

            By June 22, 2005, the Bureau reported that the mother had been incarcerated for outstanding warrants.  She was living with her mother at a Motel 6.  The father reported that after he was released from San Quentin State Prison, he entered an outpatient drug treatment program where he would remain for 120 days.  The child continued to do well in his foster home.  His foster parents wished to adopt him, and would provide him with stability, permanence, diligent care and love.  He did not have a child-parent relationship with either birth parent.  

            The section 366.26 hearing was held on July 11, 2005.  The Bureau reported that the child was healthy and happy and had bonded with the prospective adoptive parents.  The court reported that it had learned that the mother had been hospitalized several days earlier after two suicide attempts while at juvenile hall.  After reviewing the court's file, the mother's attorney--who had not known of the suicide attempts and hospitalization--stated that she was prepared to go forward.  The father, through his attorney, asked for a short continuance to consider whether the new information had some effect on the father's rights.  The court denied the request.  The father produced evidence that he was in the process of turning his life around.  He had been at a treatment facility, and was then residing in a halfway house.  He had completed a parenting class at San Quentin.  He had signed up for a housing program.  He had tested clean since the previous February or the previous December.  He had full-time work.  He was attending 10 meetings per week and had visited with the child as often as allowed.  The father also asserted that the paternal grandmother would be offering assistance to make sure that the family could be maintained as a unit.  The father again asked for a continuance, asserting that the mother's competence needed to be evaluated, and pointing out that he had shown a significant change in his lifestyle.  The court found that the father had not demonstrated that the child would benefit from continuing the parental relationship or that termination would be detrimental to the child for some other reason.  Although the father had not filed a formal petition for change of order under section 388, the court considered whether he had made a showing justifying any action under that section, finding that he had not.  The court then terminated the parents' parental rights.  

Discussion

            Where, as here, it appears at the section 366.26 hearing that it is likely the child will be adopted, the court is required to terminate parental rights and order the child placed for adoption unless it finds that termination of the parent's rights will be detrimental to the child.  (§  366.26, subd. (c)(1).)  The father does not directly attack the order terminating parental rights.

            The father contends that the court erred in denying his motion for a continuance.  We review the court's ruling for abuse of discretion.  (In re Karla C. (2003) 113  Cal.App.4th 166, 180.)  The father complains that without the continuance, both he and the court were deprived of the benefit of the mother's participation, had no way of knowing the facts that she might bring to the hearing and would not know her wishes.  As noted, the question for the court was whether the termination of parental rights would be detrimental to the child.  Even if father had standing to seek a continuance on the mother's behalf, there was no reason to suppose that the mother's competence or incompetence, or her wishes, would have any effect on that question.  Her competence or wishes certainly had no relevance to the question of whether termination of the father's parental rights would be detrimental to the child.  There also is no reason to suppose that the mother was aware of anything that would be of any aid to the father.  The court did not abuse its discretion in denying the motion.

            The father contends that the court erred in summarily denying his motion or petition to modify a court order on the grounds of changed circumstances.  We review that decision, too, for abuse of discretion.  (In re Angel B. (2002) 97 Cal.App.4th 454, 460.)  Section 388 provides, in relevant part, â€