In re Y.R.

Filed 9/19/06 In re Y.R. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Abelardo R., the presumed father of Y.R., appeals from the lower court's denial of his petition pursuant to section 388 of the Welfare and Institutions Code.^[1] Abelardo contends that the trial court abused its discretion in denying his petition because he presented sufficient evidence that circumstances had changed and granting his section 388 petition would have been in Y.R.'s best interest. We affirm the lower court's ruling.

BACKGROUND

On July 28, 2003, the Contra Costa County Bureau of Children and Family Services (bureau) filed a juvenile dependency petition pursuant to section 300 for the protection of Y.R., who was two weeks old at the time. At the time of Y.R.'s birth, her mother had tested positive for methamphetamine. Y.R. was born prematurely and had numerous medical complications. In addition, she had Down's syndrome. The petition alleged that Abelardo was the father and that he failed to provide adequate care and supervision for the child.

At the detention hearing on July 29, 2003, the juvenile court detained Y.R. Both of her parents were allowed to visit, under monitored conditions.

On August 26, 2003, the bureau filed an amended petition to allege that Abelardo and Y.R.'s mother engaged in ongoing domestic violence, which presented a danger to Y.R. The petition also alleged that on January 7, 2003, a court had terminated the parental rights in a dependency proceeding involving Y.R.'s older sibling. The petition was again amended on October 9, 2003, to add allegations that Y.R.'s mother had failed to complete her court-ordered substance abuse program in the dependency proceeding involving Y.R.'s sibling.

On October 29, 2003, both parents submitted to the jurisdiction of the juvenile court pursuant to subdivisions (b) and (j) of section 300. The court found true allegations of substance abuse related to Y.R.'s mother. It also found true that the parents had a history of domestic violence and that reunification services and the parents' rights had been terminated in the case involving Y.R.'s sibling.

The bureau prepared a disposition report and it recommended that reunification services not be provided to either parent pursuant to section 361.5, subdivision (b)(10) and (11) due to the parents' failure to reunify with Y.R.'s sibling, and the subsequent termination of their parental rights. The bureau reported that during the dependency proceedings related to Y.R.'s sibling, both parents had been referred to services to assist them in the areas of substance abuse and domestic violence. However, during those dependency proceedings, Abelardo had been arrested twice for charges related to both substance abuse and domestic violence.

Abelardo provided documentation that he was attending a group for alcohol and substance abuse and that he was being tested for drugs. He also had started a domestic violence class, although he had in the recent past been involved in a domestic violence incident with Y.R.'s mother. According to the report, Abelardo had an extensive criminal history dating back to 1996, which consisted primarily of charges for possession of drugs and domestic violence.

The bureau's report also indicated that Y.R. was a fragile infant with many medical problems. In addition to exposure to methamphetamines in utero, she had congestive and congenital heart failure, Down's syndrome, and three holes in her heart, one of which had closed. She also had a gastronomy tube for feeding. Y.R. had to be closely monitored for conditions related to heart failure, which included lip discoloration, lethargy, lack of appetite, and excessive sweating. Y.R. was being monitored closely by her pediatrician and a cardiologist and was placed with a foster parent who specialized in caring for medically fragile infants. Neither of Y.R.'s parents had any training to care for the child; nor had either parent requested training to care for Y.R.'s special needs.

The juvenile court held a contested disposition hearing on March 17, 2004. After hearing evidence and argument, the court granted Abelardo presumed father status. The court also heard evidence that Abelardo was attending a domestic violence program regularly, testing for drugs regularly with negative results, and going to alcohol and substance abuse meetings. The court granted Abelardo reunification services, and terminated services for Y.R.'s mother. The court stated: â€