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In re A.S.

December 17, 2009

IN RE A.S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
JOSEPH S., DEFENDANT AND APPELLANT.



APPEAL from orders of the Superior Court of San Diego County, Elizabeth A. Riggs, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. (Super. Ct. No. J516228A-B).

The opinion of the court was delivered by: Huffman, Acting P. J.

CERTIFIED FOR PARTIAL PUBLICATION *fn1

Joseph S. appeals orders terminating parental rights to his children under Welfare and Institutions Code section 366.26.*fn2 He also appeals an order summarily denying his petition for modification under section 388. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2006 the San Diego County Health and Human Services Agency (the Agency) initiated dependency proceedings on behalf of two-year-old A.S. and eight-month-old P.S. (together, children) when their mother, Rachel R., was arrested on drug charges. Rachel was pregnant and admitted recent methamphetamine use. She had a history of substance abuse.

Rachel alleged the children's father was Joseph S.*fn3 Rachel stated Joseph was present at the hospital when the children were born. He lived with A.S. from June 2003 to February 2005, and with A.S. and P.S. from July to November 2005.

The social worker spoke with Joseph on April 10, 2006, two days before the detention hearing. Joseph was living in a hotel. He did not disclose his telephone number or address to the social worker. Joseph said he was not in a position to care for the children. The social worker informed Joseph about the detention hearing. He did not appear.

The children were detained with maternal relatives (caregivers). Joseph visited the children twice in the caregivers' home. He did not contact the social worker, who did not know his whereabouts. The Agency initiated a parent search for him.

Joseph did not appear at the jurisdiction/disposition hearing. The court made a true finding on the section 300 petitions, removed the children from parental custody and ordered a plan of reunification services for Rachel.

When Rachel was released from custody in July 2006, she entered a residential treatment facility. She gave birth to a daughter (sibling or sister) in September. The sibling was adjudicated a dependent and placed with a maternal relative.

The Agency initiated a second parent search for Joseph in September 2006. He was not located.

In May 2007 the court placed the children and sister with Rachel, who then moved into the caregivers' home. In August Rachel tested positive for methamphetamine. When Rachel relapsed a second time in December, the Agency detained the children (and their sister) with the caregiver and filed section 387 petitions on their behalf.

In February 2008 the Agency located Joseph in local custody. He had been arrested for vehicle theft, possession of a controlled substance and driving with a suspended license. Joseph appeared in dependency court for the first time on February 13.

Joseph's relationship to the children and sister was confirmed by paternity testing. The March 27, 2008, minute orders state the court amended the section 300 petitions to reflect Joseph's status as A.S.'s presumed father under Family Code section 7611, subdivision (d), and his status as P.S.'s biological father.*fn4

The parties reached a settlement at the section 387 proceedings in June 2008. The court found by clear and convincing evidence that return of the children to Joseph and Rachel would create a substantial risk of detriment to the children's physical and emotional well-being (detriment finding or finding of detriment). The court terminated reunification services and set a section 366.26 hearing to coincide with the scheduled review hearing in the sibling's case.

The contested section 366.26 hearing was held April 10, 2009. Joseph filed a section 388 petition (petition) the same day, seeking reunification services or a continuance of the section 366.26 case until he reunified with the children's sister. After presentation of Joseph's prima facie case, the court denied his request for an evidentiary hearing on the merits of the petition. The court proceeded to the section 366.26 hearing and admitted in evidence the Agency's report dated March 16, 2009, and attachment. The social worker testified. Joseph, Rachel and the children did not present affirmative evidence.

In addition to the underlying facts described above, we summarize the evidence relevant to the issues raised on appeal, keeping in mind we view the evidence in the light most favorable to the prevailing party. (Zagami Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1096, citing Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)

The social worker reported that the children, then five and three years old, were happy, healthy and well-adjusted. The caregivers were willing to adopt the children. The Agency had also identified other families willing to adopt a sibling group similar to A.S. and P.S.

The social worker observed approximately 10 visits between Joseph and the children (and sister) from September 2008 to February 2009. A.S. was affectionate with Joseph. At the end of one visit, she clung to Joseph and cried. A.S. looked forward to her visits with Joseph and asked to see him.

Joseph tried to engage P.S. but she refused to talk to or play with him. P.S. cried when Joseph sat her on his lap. She enjoyed playing in the park with her siblings. The social worker intervened when P.S. and her sister ran to a secluded area in the park and did not respond to Joseph's prompts to return. At the next visit, P.S. stood with her arms folded and said, "I don't want to play with dad." After another visit, P.S. climbed into the social worker's car and stated, "Now take me home, where I belong."

A.S. often took control during the visit. She told Joseph how to manage P.S. so she would cooperate with his requests. Joseph had a difficult time setting limits for the children and often appeared frustrated, especially when P.S. refused to communicate with him. A.S. told her sisters what to do. The social worker stated A.S. did not behave the same way at the caregivers' home. A.S. took her role of big sister seriously and nurtured her siblings when they were sad or upset. P.S. looked up to A.S.

The social worker believed the children did not consider Joseph to be a parental figure. P.S. did not appear to have a bond with Joseph, and the benefits of adoption outweighed any residual relationship A.S. may have had with Joseph.

The court found that adoption was in the best interests of the children and there was no compelling reason for determining that termination of parental rights would be detrimental to them. The court terminated the parental ...


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