In re David L.

Filed 6/19/06 In re David L. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Shelley B., the mother of the minor, David L., appeals from the denial of her motion to modify a court order and from the termination of her parental rights. We affirm.

FACTS AND PROCEDURAL HISTORY

David L. was born in June 2004 and was detained by respondent the next day. Respondent filed a petition alleging David came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b), (g) and (j).[1]

Respondent reported to the court that appellant entered a residential treatment program on August 25, 2004, and was in good standing there. Respondent also reported that appellant had a documented history of drug use since 1989, which had undergirded her chronic homelessness and inability to care for her six other children. During this time, appellant had attended or contacted at least ten drug treatment programs, without successfully conquering her addiction. She was repeatedly the victim of or participant in acts of domestic violence. Since David's detention, appellant had attended only three scheduled weekly visits with him.

Following a jurisdictional hearing on November 19, 2004, the court determined that David came within the purview of section 300, finding: (1) David had tested positive for amphetamines at birth; (2) appellant tested positive for amphetamines at the same time; (3) appellant admitted substance abuse; (4) appellant had given birth to a total of seven children, none of whom were in her care due to her long-term substance abuse; (5) appellant was homeless and not able to properly care for David; and (6) appellant had failed to reunify with David's half-siblings, for whom permanent plans had previously been established.[2] The court ordered that appellant have visitation twice a week with David.

In a report prepared for the six-month review hearing, respondent recommended termination of services. Respondent reported to the court that appellant had completed her 90-day residential treatment program in November 2004. However, on December 26th, during appellant's first overnight visit with David, she called his caretaker at 10:00 a.m., asking to have David picked up; appellant explained she had been awake with the child since 6:30 a.m. and was tired. David's father was released from custody, where he had been since David's birth. Appellant had expressed excitement about the father's pending release. On December 28th, she failed to show for her visitation with David. Appellant's phone calls to David's caretaker ceased. She tested positive for methamphetamine on January 18, 2005. Her erratic behavior caused her to lose her housing. She entered a detox program in April but tested positive for drugs after her release and, thereby, forfeited her placement in a residential program.

On May 17, 2005, the court terminated reunification services and set a hearing pursuant to section 366.26, finding that appellant had failed to participate regularly and to make substantive progress in the court-ordered treatment plan and that there was no substantial probability that David could safely be returned to appellant within six months.

On July 27, 2005, appellant filed a motion for modification under section 388, requesting four additional months of reunification services, which was denied for failure to state new evidence or a change of circumstances and for failure to show how the requested modification would promote the best interest of the child. Appellant also filed a petition for extraordinary writ in this court, challenging the trial court's rulings of May 17th; the petition was denied.

In a report prepared for the section 366.26 hearing, respondent reported that appellant had completed a second 90-day stay at the same residential treatment program she attended the previous year. Appellant had visited David monthly and was appropriate and focused on the child. The report concluded that David was adoptable; indeed, his current caregiver was committed to adopting him.

At the section 366.26 hearing, the following facts were adduced: (1) appellant had only two overnight visits with David since his birth; (2) appellant completed an 18-hour anger management course; (3) as to the dependency proceedings of appellant's other six children: two resulted in adoption, three in placement with the minors' fathers, and one was dismissed; (4) after completing the residential program a second time, appellant went to live in a clean and sober setting but was dismissed after she left for several days to babysit her grandchildren and failed to report; (5) appellant has minimal work history; (6) appellant was then living with her adult daughter and grandchildren;[3] and (7) appellant testified to attending daily narcotics anonymous meetings since April, her longest period of sobriety. The court denied appellant's section 388 motion and terminated her parental rights, placing David for adoption.

DISCUSSION

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