Solano Cnty. Dep't of Health & Soc. Servs. v. Paula S. (In re H.S.)

In re H.S., a Person Coming Under the Juvenile Court Law.

SOLANO COUNTY DEPARTMENT OF

HEALTH & SOCIAL SERVICES, Plaintiff and Respondent, v. Paula S., Defendant and Appellant.

A136411

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Filed: May 7, 2013

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. J40513)

This is an appeal by Paula, the mother in a dependency proceeding, from an order following a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26, that terminated her parental rights and selected adoption as the permanent plan for the child.¹ We conclude that the finding of the adoptability of the child is supported by the evidence, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY²

H.S. was born approximately four weeks premature in November 2010. At birth, he had respiratory difficulties and was placed on oxygen. The medical records indicatethat he was a "newborn affected by maternal poly substance abuse during pregnancy," though he showed no signs of withdrawal other than poor feeding. He was placed in protective custody the day after his birth.

On November 30, 2010, the juvenile court ordered H.S. detained. On December 1, 2010, the Solano County Department of Health and Social Services (Department) filed a first amended dependency petition. The petition alleged that Paula has a history of substance abuse, including use of marijuana and methamphetamines, and that her drug use interferes with her ability to provide adequate care, support, and supervision for her son. She allegedly had failed to obtain prenatal care for H.S., had previously given birth to a child who tested positive for methamphetamine exposure, and had admitted to using methamphetamine while she was pregnant with two of her other children. She also admitted to using controlled substances as late as two weeks prior to H.S.'s birth. She reportedly had refused to complete substance abuse treatment programs in the past.

The Department filed its jurisdiction/disposition report on January 18, 2011. The Department alleged that H.S. was at "substantial risk of serious harm or illness" within the meaning of subdivisions (b) and (j) of section 300, and the report recommended that Paula be bypassed for reunification services under section 361.5, subdivision (b)(10), (11), and (13).³ The report states that Paula was provided voluntary family maintenance services for three older children beginning in November 2008, but that her case was closed in March 2009 due to her refusal to comply with the recommended services. Paula did enter into an outpatient substance abuse treatment program, but attended only nine sessions and tested positive for illicit substances on multiple occasions. After her discharge from that program, she was referred to a different outpatient program, but did not comply with the intake process. Subsequently, a dependency was declared as to all three minors. Jurisdiction was dismissed as to two of the children, who were placed with their fathers.

As to the third child, M.S., Paula was offered family reunification services but refused to participate. In May 2009, following a contested six-month review hearing, the juvenile court terminated family reunification services. Paula did not attend the hearing. Her parental rights as to M.S. were terminated in September 2010 and the child was placed with a maternal aunt and uncle who were planning to adopt her.

A search of Paula's criminal history revealed prior arrests for petty theft, use and possession of controlled substances, and battery. Additionally, she tested positive for methamphetamine and marijuana when admitted to the hospital for H.S.'s birth, though H.S. tested negative for all drugs. The report further alleged that Paula was unsuccessful in completing previously arranged substance abuse treatment. She refused further referrals, and was resistant to efforts to assist her and her family. The report recommended that reunification services not be provided due to her failure to address her ongoing problems, and states that offering her services would not be in H.S.'s best interest due to his immediate need for stability and Paula's failure to demonstrate her willingness to address the identified areas of concern. The report reflected that Paula told the Department's social worker she believed all prior allegations made against her concerning child abuse and neglect were false and never proven. She denied that her use of substances has interfered with her parenting, though she admitted to drug use during her pregnancies. She stated that over the last several months, she attended 12-step meetings between six to eight times a month and denied the need for formal substance abuse treatment.

On February 14, 2011, a contested jurisdictional/dispositional hearing was held. Based on its review of the Department's report and the testimony of a Department social worker, the juvenile court concluded H.S. came within section 300, subdivisions (b) and (j). He was continued in foster care in a non-relative placement. The court reduced Paula's visitation with H.S. from two to one time each week. The court declined to order reunification services for her.

The first appeal in the case followed (A131537). On appeal, we upheld the juvenile court's jurisdictional/dispositional determinations, as well as its decision to deny Paula reunification services. We also affirmed the court's order limiting her visits with her son to one per week, and found she had waived the issue of whether the Department failed to exercise due diligence in attempting to locate appropriate relatives for H.S.'s placement. (In re H.S. (Jan. 5, 2012, A131537) [nonpub. opn.].)

On April 4, 2011, the Department filed a request to change a court order pursuant to section 388. The Department's social worker indicated that the child was becoming increasingly attached to his current foster mother who was not a concurrent foster home. A secondary adoption worker had reportedly identified two prospective concurrent foster homes for the child, both of which were located outside of Solano County. As the juvenile court's dispositional order specified placement of the child in an approved home within the county, a modification was required in order to allow the county to pursue these placement options.

On June 2, 2011, counsel for the Department advised the court that the proposed out-of-county placement was located in Sacramento, and that the prospective foster parents were committed to bringing the child to Solano County for parental visitation. The juvenile court granted the Department's request.

On July 19, 2011, the Department filed a six-month status review report. According to the report, H.S.'s father reported that the mother was asked to leave the residence she shared with the father in San Bruno - the home of the father's sister - due to her ongoing drug abuse, and was living in Missouri with her parents. The father hoped to relocate to Missouri to live with the mother, and have the dependency case transferred there. The mother had not visited with the child since May 16, 2011; thereafter, she either canceled visitation sessions or did not appear for scheduled visitation. On July 14, 2011, the mother filed a notice of change of mailing address in the state of Missouri.

The child continued to reside in a foster home located in Solano County, where he appeared to be content. The report indicated that the child was developmentally retarded,and medical tests were ordered to determine the cause, nature and extent of his developmental delays. The six-month report recommended that the juvenile court terminate the father's reunification services and set the case for a section 366.26 selection and implementation hearing.

The contested six-month review hearing was held on September 22, 2011. The minutes indicate that the juvenile court attempted to contact Paula via telephone with no success. As pertinent here, the social worker testified that the child is "severely developmentally disabled," either "partially or completely blind," and suffers from a "seizure disorder" which causes "infantile spasms." Recent MRI results revealed that the child suffered from a "partial absence of the hypoplasia corpus callosum" of the brain, which resulted in a deficiency in communication of "different parts of the brain." The social worker indicated that the child was not currently an appropriate candidate for adoption, although a foster home was prepared to provide long-term care for the child.

At the hearing, reunification services to the father were terminated and the matter was set for a section 366.26 hearing. On September 28, 2011, the juvenile court filed its findings and orders after hearing. As part of its orders, the court continued to authorize out-of-county placement of the child.

Apparently, the Department did not exercise the placement discretion granted to it under the June 2, 2011 order, as the child was still with his in-county placement when the Department's six-month status report was filed, and there is no evidence this circumstance changed prior to the September 22, 2011 hearing. In the second appeal we therefore found the mother suffered no prejudice as a result of the first out-of-county placement order, and the September 28, 2011 order effectively superseded the prior order by again authorizing an out-of-county placement. We further perceived no reason to exercise our discretion to decide this matter on the merits, as Paula voluntarily left the state and was unavailable for visitation with her son. Accordingly, with no possibility...