In re Brian M.

Filed 1/10/07  In re Brian M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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.  William A. Anderson, Jr., Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Affirmed.

                      Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

                      Joe S. Rank, County Counsel, and Cynthia Morton, Deputy County Counsel, for Plaintiff and Respondent.

                      Valerie N. Lankford, under appointment by the Court of Appeal, for Minors.

1.  Introduction

                      Defendant and appellant Kelly M. is the mother of the five children who are the subjects of this dependency proceeding.  She appeals the termination of her parental rights under Welfare and Institutions Code section 366.26.^[1]  She argues that her parental rights should not have been terminated, because the juvenile court should have found that the beneficial relationship exception to termination, or the sibling relationship exception, applied.  We find no error and we affirm.

2.  Factual and Procedural History

                      In early 2004, the Riverside County Department of Public Social Services (DPSS) took the three older children into protective custody.  (At that time, the two younger children, twins, had not yet been born.)  DPSS filed a petition alleging that the children came within section 300, subdivision (b), because the parents had unresolved substance abuse problems; the parents had a history of domestic violence; and the parents had failed to benefit from family maintenance services.  In addition, the family home was dirty and unsafe.

                      The three older children were placed together in a confidential foster home.  The juvenile court found that they came within section 300, subdivision (b), and declared them dependents of the juvenile court.

                      At the six-month review (§  366.21, subd. (e)), the social worker's report recommended that the three children be considered a sibling group and that an additional six months of reunification services be offered to the parents.  At that point, the two older children were placed in the same foster home and the youngest was placed separately.  The parents had made little progress on their plan activities.  The parents had moved in with the paternal grandmother, as they were unable to pay the space rental on their mobile home.  Mother had failed to attend counseling appointments and parenting classes.  She did complete a residential drug treatment program, but had not yet enrolled in an aftercare program.  Mother did participate in required drug testing as part of her residential program and she attended educational meetings concerning one of the children.  Father had enrolled in a substance abuse treatment program and had attended special education meetings for one of the children.  But, he had not completed all the required drug tests or begun therapy.  He had not completed a parenting class, despite three referrals.  Domestic violence between the parents was also an issue that remained unaddressed.

                      At the 12-month review hearing (§  366.21, subd. (f)), set in February 2005, the social worker recommended a further extension of reunification services.  The two older children had been placed together in one relative placement and the third in a different relative placement.  At the time of the 12-month report, mother had been participating in the elements of her service plan, including counseling, parenting classes, drug treatment aftercare, and drug testing.  Father had also been participating in his case plan.  The parents had visited the children.  Things were on track to return the children home, as soon as the parents obtained a stable means of support and suitable housing.  An additional complication was that mother was again pregnant, so the parents would need to care for a new child as well as the three older children.  Concurrent plans were also developed for adoption by the relatives in each of the relative placements.

                      Between the time of the 12-month hearing and the expected 18-month review, mother gave birth to twin girls.  DPSS filed a dependency petition for the infant twins based on section 300, subdivision (j), abuse of a sibling putting the children at risk for similar abuse.  The social worker recommended placing the children with mother and father, with family maintenance services.  The court adopted this recommendation.

                      At the 18-month juncture for the older children (§  366.22), the parents had still not resolved their housing issues.  If the three older children were returned to the parents, then the five children and the parents would be living in one room, in the paternal grandmother's home.  The social worker recommended terminating reunification services, and setting a selection and implementation hearing for the older children.  The social worker recommended a long-term plan of guardianship for the older two boys and a relative adoption for the youngest boy.

                      After preparing the 18-month review report, the social worker filed a detention report for the infant twins in July 2005.  Mother's drug test had shown positive for methamphetamine, so the twins were removed from the home.  Although father's drug test was clean, he admitted that he had also recently used drugs again.   He then failed to drug test, as the social worker had requested on the date the children were taken into custody.  The juvenile court ordered the twins detained.  They were placed in confidential foster care.

                      In the jurisdictional and dispositional report for the twin girls, the social worker recommended denying services to the parents, based on their failure to reunify with the three older boys.  (§  361.5, subd. (b)(10) & (13).)  The jurisdictional and dispositional hearing was continued several times; in the meantime, the twins were placed into the home of the relative who was the prospective adoptive parent for the youngest sibling.

                      In October 2005, the juvenile court terminated the parents' reunification services as to the three older children; the court selected legal guardianship as the permanent plan for the two older boys and selected adoption as the permanent plan for the youngest boy.  On the same date, the court conducted the jurisdictional hearing on the twin girls.  The court found true the allegations of the dependency petition and ordered that reunification services not be provided to the parents.  The court therefore set a date for a selection and implementation hearing for the twins.  The prospective permanent plan for the twins was eventual adoption by the same relative who was adopting the youngest boy.

                      Mother filed a petition under section 388, asking that reunification services be reinstated as to all the children.  The court denied this petition.

                      At the selection and implementation hearing, mother argued that legal guardianship should be the plan selected for all the children to avoid confusion and difference in their status, and to avoid problems with future sibling visitation.  The court adopted the recommendations in the social worker reports, however, and selected legal guardianship as the appropriate plan for the two older boys (as the grandmother was unwilling or unable to adopt them), but terminated the parental rights of the parents as to the youngest boy and the twin girls (as their relative caretaker was able and willing to adopt them).

                      Mother has appealed the termination of her rights.

3.  Analysis

I.  The Beneficial Relationship Exception Did Not Apply

                      Mother argues, first, that the juvenile court erred in failing to apply the so-called beneficial relationship exception to the termination of parental rights.  Section 366.26, subdivision (c)(1)(A), provides that, although the preferred permanent plan for dependent children is adoption, parental rights will not be severed to free the child for adoption if the parent has maintained regular visitation and contact with the child, and the child would â€