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In Re Devin T., A Person Coming Under the Juvenile Court v. T.H

December 10, 2012

IN RE DEVIN T., A PERSON COMING UNDER THE JUVENILE COURT LAW. EL DORADO COUNTY DEPARTMENT OF HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
T.H., DEFENDANT AND APPELLANT.



(Super. Ct. No. PDP20110028)

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

In re Devin T. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

T.H., mother of the minor, appeals from orders terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395; statutory references that follow are to the Welfare and Institutions Code unless otherwise designated.) Appellant reasserts her challenge to the order denying her services which she first raised in an extraordinary writ that was denied in case No. C068854. (Cal. Rules of Court, rule 8.450.) Appellant also argues the court erred in failing to apply the sibling and beneficial relationship exceptions to avoid termination of parental rights and in failing to order an updated bonding study. Appellant contends the court erred in denying her petition for modification and that there was a failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). We affirm the orders of the juvenile court.

FACTS AND PROCEEDINGS

In April 2011, the El Dorado County Department of Human Services (the Department) filed a petition to detain 20-month-old Devin T. due to the parents' substance abuse and failure to protect him. The minor was placed with a paternal aunt and his eight-year-old half sibling was placed with the maternal grandmother.

The reports provided an extensive review of appellant's substance abuse and child welfare history. Appellant had been the subject of 22 referrals and 16 investigations with four substantiated referrals.

The half sibling's father told the social worker he saw appellant using drugs prior to the half sibling's birth in 2003 and found bags of white drugs under the mattress. In 2005, petitioner successfully completed a voluntary family maintenance plan to address her substance abuse. During this period, petitioner was ordered by the family law court to complete a 26-week substance abuse treatment program. In 2008 there were continued reports of neglect and substance abuse without intervention. In August 2010, appellant disclosed she was drinking to the point of passing out.

In January 2011, appellant tested positive for methamphetamine, admitted ongoing use of methamphetamine and again agreed to a voluntary family maintenance plan for the minor and his half sibling. In March 2011, the minor was placed with his father, under the family maintenance program, following appellant's hospitalization for ingesting pills and her subsequent arrest for possession of a controlled substance for sale. Appellant admitted methamphetamine use during this time period and felt her drug use was increasingly out of control around the end of February 2011. Within a month of appellant's hospitalization, a petition was filed removing the minor from his father's custody as a result of domestic violence and father leaving the minor in appellant's care knowing appellant admitted continued drug use.

In May 2011, the court sustained the petition and set a disposition hearing. At the pretrial hearing appellant requested a bonding study to address the best interest exception to bypassing reunification services. The court ordered Dr. Roeder to perform the study.

Appellant was in an inpatient drug treatment program and admitted she had an addiction to methamphetamine. The Department recommended denial of services because appellant was a chronic drug user who had resisted prior court-ordered treatment within three years of filing the petition. The Department assessed that services were not in the best interests of the minor due to appellant's failure to benefit from prior services, the numerous child welfare referrals and appellant's high risk for relapse which placed the minor's stability at risk.

At the disposition hearing in July 2011, Dr. Roeder testified appellant had a strong and positive attachment to both boys but continued removal was not detrimental as long as they had contact with her. However, if contact were broken, it would be detrimental to their development. He further testified that stability was important to a child's physical and mental development. Dr. Roeder was unable to give an opinion on whether services would be in the minor's best interests.

The social worker testified that appellant's visits were appropriate and that the minor did show some separation anxiety at the end of visits. The social worker stated that the family law court ordered appellant to drug test in November 2003 and to participate in drug treatment in 2005. The social worker further testified that appellant had a positive test for methamphetamine in January 2011 and a second positive test for methamphetamine in May 2011. The social worker testified appellant had completed her inpatient program and was engaged in outpatient treatment.

The court denied services for appellant pursuant to section 361.5, subdivision (b)(13). The court did not find that services would be in the best interests of the minor pursuant to section 361.5, subdivision (c).

The assessment for the section 366.26 hearing stated the two-year-old minor remained in the care of the paternal aunt who was also the prospective adoptive parent. The minor was bonded to the paternal aunt and thriving emotionally, physically and psychologically in her care. The minor had some respiratory illnesses due to smoke in his parent's home and needed major dental work. He was developmentally on target and was in preschool. He no longer had night terrors and was not in therapy but did have anxious behaviors after visits with his half sibling and the maternal grandmother. The minor had twice weekly supervised visits with appellant and the half sibling. The visits were going well and appellant was appropriate and effective in interacting with the minor. The minor was assessed as highly adoptable. He was young, able to attach to his current caretaker and showed healthy boundaries with strangers. He was transitioning from visits with appellant more easily but showed anxious behaviors after visits with the maternal grandmother and his half sibling. The paternal aunt felt it was important to continue contact between the siblings and was open to contact with the parents provided they remained clean and sober. The Department recommended adoption as the permanent plan to provide the maximum permanence and stability for the minor.

At the section 366.26 hearing on January 19, 2012, appellant requested a contested hearing and an updated bonding study, noting that the prior study was to address a different issue. Minor's counsel argued that appellant had many months to request a bonding study but did not do so and the current request was merely for delay. The Department agreed the request was untimely. The court set a contested hearing but declined to delay the proceedings for a bonding study.

Appellant filed a petition for modification in January 2012 alleging as changed circumstances, the existence of a conflict in the minors' counsel's representation of both minors because it was not in the half sibling's interest to implement the permanent plan of adoption for the minor. The minors were each placed with relatives who would not be able to ensure a continuing relationship and the half sibling's caregiver said that it would be detrimental for the half sibling to lose contact with the minor. The petition sought an order for separate counsel for the minors because the minors had "potentially conflicting interests." The petition alleged the change would be in the half sibling's best interest because he felt like his voice was not being heard. The half sibling's caregiver information form was attached to the petition. At the hearing, minor's counsel said there was no conflict in representing both minors, pointed out that the minors would not be placed together in any case because they had been on different tracks since the disposition hearing and argued that the petition was brought for purposes of delay. The court stated it was "hard pressed" to find an actual conflict and denied the petition.

At the selection and implementation hearing in February 2012, the social worker testified that, although the minor missed his mother initially, he had settled and was happy in his current placement. The social worker saw no reason why adoption would not occur. The minor was able to attach to the paternal aunt and was developing normally in her care.

Appellant testified she and the half sibling visited the minor regularly and described a typical visit in which the minor wanted time with her but also wanted attention from the half sibling. Appellant testified that sometimes the minor was upset at the end of visits and sometimes he was not. She further testified about services she had participated in since the disposition hearing to improve her skills and stability. She said her drug tests for January 2012 were negative but admitted she was charged in December 2011 with possession of paraphernalia after a search warrant was executed at her residence. Appellant also testified she was charged with being under the influence in December 2011 but that was due to prescription medication for dental work.

The maternal grandmother, who was the half sibling's caregiver, supervised their weekly visits. She testified the minor was very excited to see his half sibling and that the half sibling looked forward to the minor's visits.

The paternal aunt testified that the minor saw his half sibling at visits with appellant and in separate weekly visits and that she would allow sibling visits in the future. She also testified that the minor ...


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