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In Re Marcelo B., A Person Coming Under the Juvenile Court v. Frank B. and Stefanie B

September 24, 2012

IN RE MARCELO B., A PERSON COMING UNDER THE JUVENILE COURT LAW. HUMAN SERVICES AGENCY, PETITIONER AND RESPONDENT,
v.
FRANK B. AND STEFANIE B., RESPONDENTS AND APPELLANTS.



Tari L. Cody, Judge Superior Court County of Ventura (Super. Ct. No. J068335)

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

CERTIFIED FOR PUBLICATION

(Ventura County)

The adverse consequences of alcoholism are well known. People have the power to become "alcoholics" and as long as they do not victimize others, the law, generally speaking, leaves them alone. As family members will attest, there are silent victims in the wake of alcoholism. Here, one of such victims is the five year old son of two such people. They are deeply entrenched in alcohol as a way of, and perhaps as an end to, life. The judiciary has been tasked by the Legislature to protect children. There are many adverse consequences to alcoholism. We add one more: loss of a child through legal termination of parental rights.

Frank B. (Father) and Stefanie B. (Mother) appeal from orders of the juvenile court denying Father's request to change an order of the juvenile court pursuant to Welfare & Institutions Code section 388,*fn1 and terminating their parental rights to their biological son, Marcelo B., born in February 2007. They contend the juvenile court abused its discretion when it denied the section 388 petition because Father showed changed circumstances, i.e. participation in alcohol abuse treatment. They also contend the trial court erred in terminating their parental rights because they maintained regular visitation with Marcelo and he would benefit from continuing their relationship. We affirm.

Facts and Procedural History

Father and Mother each have a long history of alcohol abuse. Mother suffers from pancreatitis, a condition exacerbated by alcohol use. On the afternoon of June 7, 2011, Mother felt drowsy and ill after taking prescription medication. She drank alcohol which made her feel worse. Father, who had also been drinking, decided to drive her to the hospital. The couple put their then four-year-old son Marcelo in the car and started out for the hospital. Along the way, a Simi Valley police officer stopped Father and arrested him for driving under the influence of alcohol. Father's intoxication was so obvious and so severe that the officer did not ask him to perform the usual field sobriety tests. The officer believed it would be dangerous for Father to attempt them.

The officer called an ambulance to take Mother and Marcelo to the hospital. Because Mother was ill and also intoxicated, nurses at the hospital called for a social worker to arrange for Marcelo's care. The social worker took Marcelo into protective custody and placed him in a foster home before he was moved to the home of a paternal aunt, Cathy H. She is now Marcelo's prospective adoptive mother.

Marcelo's family had been the subject of a previous dependency proceeding in Los Angeles County. Marcelo had been removed from the parents' custody in May 2009, for general neglect caused by chronic alcoholism. In the prior proceeding, the juvenile court found that the parents had a history of violence toward each other and that Father had kicked Mother while Marcelo was present. Mother had prior drug and alcohol-related arrests, including a July 2008 arrest in Las Vegas for driving under the influence. In November 2008, Father was arrested in Laughlin, Nevada for domestic violence toward Mother. Mother was hospitalized for her injuries and Marcelo was placed in protective custody until her discharge from the hospital.

The social worker assigned to the prior dependency case reported that Father and Mother worked "really, really hard at being sober," but also described their alcoholism as " 'so bad that [Father] has seizures from it' and [Mother] 'had flares of Pancreatitis.' " Nevertheless, the parents complied with their case plans and the family was reunited in February 2011.

In the present case the juvenile court detained Marcelo in foster care and ordered supervised visits. It also ordered both parents to submit to random drug testing, to avoid use or possession of alcohol or drugs without a prescription, and to attend Alcoholics Anonymous meetings at least three times per week. Father and Mother failed to appear at the next four scheduled hearings. On each occasion, they claimed illness prevented them from attending court.

In a report prepared for the jurisdiction and disposition hearing, Mother stated she had a 15-year history of substance abuse. She met Father in an alcohol rehabilitation program and had been sober for six or seven years when she relapsed in 2008. After regaining sobriety during the prior dependency case, Mother claimed to have remained alcohol free until about 3 days before the family's aborted trip to the hospital. Drinking caused her to have a pancreatitis attack, which caused Father to panic and drive her to the hospital. Mother claimed her alcohol use did not impact her ability to parent Marcelo.

Father was in a similar state of denial concerning the effect of his alcohol use on Marcelo. He told the social worker he had been sober for six years before he and Mother " 'slipped' " when " 'the economy got bad[,]' " leading to the prior dependency case. Father described himself and Mother as " 'good parents' " and claimed that his drinking never affected Marcelo because, " 'I was a happy drunk.' " Father denied any domestic violence in his relationship with Mother, ignoring the 2008 incident in Laughlin, Nevada. He told the social worker that he understood " 'maintaining sobriety is key[,]'" and offered the opinion that " 'it's easy to stay sober.' "

Father's sister and Marcelo's prospective adoptive mother, Cathy H., described both parents as " 'habitual liars,' " who were " 'constantly intoxicated.' " She said that Father had been drinking heavily for at least 25 years. She recalled one instance when she arrived at a hotel where the family was staying to find "the mother passed out inside on a couch and the child running around outside in a dirty diaper." On another occasion, she found Mother passed out on the couch while Marcelo "was attempting to crawl inside the oven." Cathy H. told the social worker that the ...


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