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In Re Bethany M., A Person Coming Under the Juvenile Court v. Robert S

December 13, 2010


Appeal from postjudgment orders of the Superior Court of Orange County, Douglas Hatchimonji, Judge. Affirmed. (Super. Ct. No. DP012929)

The opinion of the court was delivered by: Ikola, J.

In re Bethany M. CA4/3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Robert S. (father) appeals from the court's termination of his parental rights to Bethany M., who is now five years old. Father contends the court abused its discretion by denying his Welfare and Institutions Code section 388 petition seeking presumed father status, reunification services, and/or placement of Bethany in his care.*fn1 We affirm the postjudgment orders.


On February 6, 2006, three-month-old Bethany and her two siblings were removed from Monica M.'s (mother's) custody due to mother's drug use and incarceration. In mother's interview with the Orange County Social Services Agency (SSA), she stated she had used methamphetamine since age 15, but had been sober for three years prior to Bethany's birth. Shortly after the child's birth, mother began using methamphetamine again. Mother named father as Bethany's father, but misspelled his last name. She did not know his whereabouts and had never told him she was pregnant with and had borne his child. Mother said father was violent with her and used cocaine frequently. He was not named on Bethany's birth certificate.

By June 2006, SSA had exhausted all available leads in its efforts to find father. The court found SSA exercised due diligence in that endeavor. The court found true the dependency petition's allegations, declared Bethany a dependent of the juvenile court, and granted reunification services to mother (who had been released from jail in May 2006).

In September 2007, Bethany and her siblings began a 60-day trial visit with mother. At the 18-month review hearing in November 2007, the court returned all three children to mother's custody under a family maintenance plan. By then, mother had borne a fourth child.

In January 2008, mother tested positive for cocaine use, causing SSA to retake custody of all four children. Shortly thereafter, however, mother's positive cocaine test was determined to be inaccurate. The court returned the children to mother's custody.

In May 2008, mother requested that the children be removed from her care, since she was no longer willing or able to care for them.*fn2

In July 2008, the court entered father's default as to Bethany due to SSA's inability to locate him. The court terminated mother's reunification services and set a section 366.26 selection and implementation hearing for November 2008.

In June 2009, Bethany and her younger brother were placed with foster parents. Several months later, the foster parents were potentially interested in adopting Bethany's brother but not Bethany. At a November 2009 team decision making meeting, the foster mother expessed a concern "about the lack of strong attachment" on Bethany's part. (SSA reported Bethany had "had difficulty in attaching to her caregivers in the past, as [mother] had no attachment to [her], and [Bethany had] been in 14 placements.") The foster mother also did not feel attached to Bethany because the child is biracial, and the foster mother had "experienced negative comments out in public regarding [the childrens'] difference in race, and the foster mother [was] concerned about how it may affect Bethany in the future."

In November 2009, mother provided SSA with the correct spelling of father's last name. Father received a notice from SSA and contacted the social worker on November 30, 2009 -- over three and a half years after Bethany's entry into the dependency system. Father said he wished to care for Bethany if he was indeed her father, and stated "he had five adult children that he assisted in raising" and did not want his child to be adopted out. He said Bethany might be his child if she appeared biracial, since he is African-American. He requested a paternity test. Father said he would attend the next court hearing. He said he was "self employed as a commercial agent for drunk driving and drug abuse," had been in the army for six years, and had been a sniper.

In an interview, mother stated father suffered from flashbacks and displayed "unstable reactions," and that she left him because he once choked her in front of the children and she was concerned for their safety and her own.

According to adoption assessments conducted in October and November of 2009, Bethany was adoptable. In December 2009, an adoptions worker (who had planned to submit a referral for a prospective adoptive home for Bethany) stated she could not proceed with the child's placement while father remained a possibility.

That same month, father appeared in court, was appointed counsel, and requested paternity testing, which the court granted. At the hearing, in response to the court's questions, father related the following: He had just moved into his sister's home. He did not know of mother's pregnancy or Bethany's birth until notified by SSA. He had lived with mother for two years, had ...

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