Appeal from an order of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) (Super. Ct. No. DP011858)
The opinion of the court was delivered by: Aronson, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
D.Z. (father) appeals from the juvenile court's order terminating his parental rights to his now five-year-old son, S.Z. (See Welf. & Inst. Code, § 366.26; all further undesignated statutory references are to this Code.) Father asserts the juvenile court erred by (1) denying his modification petition (§ 388) seeking reunification services a year after S.Z. had been detained, (2) by finding S.Z. was likely to be adopted (§ 366.26, subd. (c)(1)), and (3) by not applying the benefit exception (§ 366.26, subd. (c)(1)(B)(i)) to termination of parental rights. As we explain, father's contentions lack merit, and we therefore affirm the juvenile court's order.
FACTUAL AND PROCEDURAL BACKGROUND
By age four, S.Z. had been a juvenile court dependent three times. He was detained at birth in 2005 when his mother, R.D. (mother), tested positive for methamphetamine. Within a year, by June 2006, father and mother successfully reunified with S.Z. and mother's four-year-old son, D.D. Four months later, however, Orange County Social Services Agency (SSA) detained the children again.
The juvenile court sustained a new dependency petition based on its finding that father committed domestic violence against mother in front of the children and based also on mother's unresolved substance abuse, the parents' drug-related criminal history, and father's failure to protect the children from mother's methamphetamine and marijuana abuse. In a parallel proceeding, the family law court granted mother's restraining order against father, and required him to complete batterer and drug testing programs, both of which included substance abuse treatment components.
Father's admitted history with drugs began at age 13 with marijuana use "just a couple times." At age 19, he turned to methamphetamine; he later minimized his use as "[n]ot often at first," but he soon drew the attention of law enforcement, resulting in an arrest and participation in a treatment program through Penal Code section 1000's diversion program. He nevertheless continued to use methamphetamine regularly, indeed he admitted daily abuse for at least a year, and he also sold methamphetamine, resulting in further charges in 2002 and a nine-month court-ordered treatment program. Subsequently, after father completed the additional testing and treatment measures the family court ordered in 2006 or 2007, the juvenile court returned S.Z. to father's custody and closed the second dependency case in December 2007.
But within three weeks, SSA investigated a child abuse report that father had neglected two-year-old S.Z. by leaving him unsupervised in an alley on at least 15 to 20 occasions for 20 to 40 minutes at a time. The record does not disclose what father was doing when he left S.Z. in the alley. Father denied the allegation, initially accepted voluntary services, but later declined them. SSA eventually closed the case without detaining S.Z.
Father began using heroin. As before, he minimized his drug use, explaining it was "only like once in a while" initially, and he seemed to blame his new habit on a romantic partner, noting his girlfriend introduced him to the drug. By the time SSA detained S.Z. in the present proceedings in July 2009, father was injecting himself twice daily with heroin while he cared for S.Z.
Based on an anonymous tip, an SSA social worker and Westminster police responded to a motel room and found father about to inject himself with heroin while S.Z. slept on a bed about 10 feet away. An ambulance transported father to a hospital when he began exhibiting symptoms of heroin withdrawal. The social worker found a "'rig,'" a syringe filled with heroin, in the motel bathroom. Father claimed he kept the rig and drug paraphernalia, including a shoe lace he used as a tourniquet and a bag of new and used needles, out of S.Z.'s reach on a metal rack. He claimed he did not use heroin in S.Z.'s presence, but instead sent him away to his paternal grandmother's or elsewhere, or waited until S.Z. fell asleep. He claimed he was weaning himself off heroin by injecting himself with $10 doses once in the morning and once at night. He admitted to the social worker that he had been using heroin everyday for the last two years.
Father pleaded no contest to the dependency petition, including the allegation he used heroin and other illegal substances "[o]n numerous, unspecified occasions, for the past two years . . . while being the sole and primary caretaker for the children," D.D. and S.Z. The juvenile court sustained the petition and, at the disposition hearing, rejected reunification services for father. (See § 361.5, subd. (b)(13) [history of drug abuse and failure at court-ordered drug treatment may preclude reunification services].) We denied father's writ petition challenging the denial of reunification services. (D.Z. v. Superior Court (Dec. 14, 2009, G042573) [nonpub. opn.].)
Meanwhile, four-year-old S.Z. and seven-year-old D.D. had experienced several months of placement upheaval. A brief initial stint at an interim foster location gave way to a placement with a foster care family, where D.D. and S.Z. exhibited "challenging" behaviors. According to mother, who maintained contact through visitation, the children were "anxious as to what's going to happen to them, who they are going to be with and when/if they can see parents and relatives." The foster mother soon returned the children to SSA for a new placement because of their aggressive conduct. D.D., for instance, pulled a little girl on top of him, reached up her skirt and tried to put the girl's hand over his shorts in his groin area. S.Z. began to "mirror" D.D.'s bullying behavior, on one occasion pushing a one-year-old down and laughing as the child cried.
SSA arranged therapy for the boys and placed them in a group home where their aggressive behavior waned. S.Z.'s tantrums sometimes lasted longer than two hours at a time, but he did not act out against his peers or adults. The home, unfortunately, soon closed for their age group, so S.Z. and D.D. waited for their next placement at Orangewood Children's Home (OCH). There, it appears some aggressive sibling behavior resurfaced, with S.Z. mimicking D.D.'s conduct. SSA placed both of them briefly with a maternal second cousin, but the placement lasted less than 10 days, during which, particularly in times of transition such as bedtime, S.Z. displayed "very high energy and temper tantrums" that often escalated into aggression against himself and others. He kicked, punched, and tore down curtains in the house, also punching himself and destroying toys and objects. D.D., also aggressive and ...