Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Steven Berman, Referee. Los Angeles County Super. Ct. No. CK48812
Jill Regal, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
A mother appeals an order terminating her parental rights over her eight-month-old son, whom she had not seen or visited since he was detained from her care two days after birth. Mother has not shown that the juvenile court erroneously ordered that no reunification services be provided, and her attempt to appeal that order is untimely. In a Welfare and Institutions Code section 366.26 hearing, the issues are whether the child is adoptable and whether there is a statutory exception to adoption. Mother has not met her burden as to either issue. We therefore affirm the order terminating parental rights.
Unless otherwise specified, statutes in this appeal will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
In March 2006 the Department of Children and Family Services (“DCFS”) detained Baby Boy L. two days after his birth because he had a positive toxicology screen for cocaine, as did his mother, Katrina L. (“Mother”). In 2002 Mother gave birth to Kaja L., also born with a positive toxicology screen for cocaine. Kaja L. became a dependent child of the Juvenile Court, Mother’s parental rights to Kaja L. were terminated on September 4, 2003, and Kaja L. was adopted. When Baby Boy L. was detained, Mother admitted her history of drug abuse and failure to complete a drug treatment program, and admitted using cocaine three days before Baby Boy L.’s birth. Mother was homeless, had no family support, was diagnosed as bi-polar but took no medication, and could not identify Baby Boy L.’s father. Mother was willing to attend a drug treatment program and desired to reunify with Baby Boy L.
On March 29, 2006, the juvenile court ordered Baby Boy L. detained as a person described by Welfare and Institutions Code section 300, subdivisions (b) and (j). The DCFS filed a section 300 petition, alleging juvenile court jurisdiction over Baby Boy L. based on subdivisions (b) [parent’s failure or inability to protect the child adequately and to provide regular care] and (j) [abuse of sibling Kaja L.].
In a May 9, 2006, jurisdiction/disposition report, the DCFS reported that Baby Boy L. was “thriving in placement” with foster parents. Mother’s whereabouts were unknown. A parole agent reported Mother was previously awarded Proposition 36 drug rehabilitation four times, and on March 28, 2006, a bench warrant was issued for Mother. Since Baby Boy L.’s detention, Mother had not visited him and had not telephoned to inquire about his well-being.
At the May 9, 2006, adjudication hearing, Mother did not appear. The juvenile court adjudicated the matter and found Baby Boy L. to be a person described by section 300, subdivision (b), declared him a dependent child of the juvenile court, found that the juvenile court previously ordered termination of reunification services for Baby Boy L.’s half-sibling because the parents failed to reunify, and found that Mother and Father had not made reasonable efforts to treat the problem leading to the removal of Baby Boy L. or his half-siblings. Pursuant to section 361.5, subdivision (b)(13), the juvenile court found that Mother had a history of extensive abuse and chronic use of drugs or alcohol, resisted prior court-ordered treatment in the three years before this petition, and on two prior occasions failed to comply with a drug or alcohol treatment program. Pursuant to section 361.5, subdivision (b)(1), the juvenile court found Mother’s whereabouts were unknown, ordered no reunification services be provided for Mother, and set the matter for a section 366.26 hearing on September 5, 2006. Mother was allowed monitored visits after she contacted the DCFS.
An adoption assessment found Baby Boy L. to be adoptable and an adoption home study for his foster parents was approved by the Southern California Foster Family and Adoption Agency and by an Adoption CSW. As of September 5, 2006, Baby Boy L. lived with his foster parents, who applied to adopt him. He was treated for asthmatic symptoms in July and August 2006, but otherwise appeared healthy and happy and developed age appropriately. He had lived with his caregivers since he was seven days old and appeared bonded and responsive to and happy in their care. Both caregivers were employed and their income was sufficient to meet the family’s monthly expenses. The caregivers were in good physical health, were very nurturing toward Baby Boy L., and were eager to adopt him.
Mother’s whereabouts were unknown until July 19, 2006, when she was located in jail. Mother was incarcerated in April 2005 for violating her parole, and when released she was arrested again on July 7, 2006. Mother stated she had no contact with family members, and did not know the name or whereabouts of Baby Boy L.’s father. Mother struggled with her cocaine addiction. She expected to be in prison for three months. As of September 5, 2006, Mother had not contacted the DCFS to visit or reunify with her son. She remained incarcerated.
Because of a problem with notice to Mother, the juvenile court continued the section 366.26 hearing to December 5, 2006.
For a November 7, 2006, review of permanent plan hearing, the DCFS reported that Baby Boy L. continued to live in a foster-adopt placement. Now seven months old, he continued to appear responsive to and comfortable with his caregivers, and developed age appropriately. His foster parents took him to a hospital for treatment with breathing difficulties on October 30, 2006.
Mother was in County jail on August 16, 2006, and was released from the Correctional Institute for Women on October 26, 2006. On August 28, September 10, and September 13, 2006, Mother wrote to a CSW about her interest in reunifying with Baby Boy L. Mother also asked the CSW to contact her fiancé, Frank Hawkins, who said he was not Baby Boy L.’s father but said he was going to marry Mother. Shortly before her expected release from prison, Mother contacted the CSW and said she expected to enter a program at Foley House when she was released and expected to be living with Frank Hawkins. Mother appeared at the DCFS office on October 26, 2006 with Hawkins. A CSW personally served Mother with notices of hearings on November 7 and December 5, 2006, and advised Mother that the DCFS would no longer assist her in reunification and Mother would have to give her attorney updates on her progress. Mother insisted that she had a chance to reunify with Baby Boy L., and asked if she could have visits with him. The CSW responded that she was entitled to monitored visits, and she would have to arrange monitored visits through a new CSW who was going to be assigned to her case.
As of November 1, 2006, Mother had not visited Baby Boy L. Mother lived with a male friend, had no stable home, and could not provide the basic necessities for herself and Baby Boy L. Thus Mother was not prepared to reunify with Baby Boy L. The DCFS assessed Mother as not having complied with her case plan and court orders and as remaining a risk to Baby Boy L.’s safety and well-being.
For the December 5, 2006, hearing, the DCFS requested termination of parental rights for Baby Boy L.
On December 5, 2006, the juvenile court found that it would be detrimental to return Baby Boy L. to his parents, ordered parental rights terminated, and ordered custody transferred to the DCFS for adoption planning and placement. The juvenile court found that it was likely that Baby Boy L. would be adopted, and ordered adoption as his permanent plan.
On January 26, 2007, Mother filed a letter in Los Angeles County Superior Court stating her desire to appeal. Mother was arrested on November 8, 2006, and stated that she was in the Lynwood County Jail. Counsel was appointed for Mother, whose January 26, 2007, letter was treated as a notice of appeal. On March 21, 2007, appointed counsel notified this court that counsel was unable to file an opening brief on the merits on Mother’s behalf. On March 23, 2007, Mother was given 30 days to submit any grounds of appeal or arguments she wished the court to consider.
On April 4, 2007, Mother filed a letter with this court. Mother stated that one ground for terminating her parental rights was her failure to complete court-ordered drug rehabilitation. While admitting this was true, Mother stated that she continuously applied to numerous rehabilitation programs, and on December 4, 2006, was accepted to the “live in” facility at the Walter Hoving Home in Pasadena. Mother stated her belief that she would be allowed Proposition 36 drug programs once her co-defendant was sentenced.
Mother also stated that she wanted the opportunity to raise Baby Boy L., and while incarcerated at Century Regional Detention Facility, she was taking parenting classes and attending AA/NA and had taken all steps to improve her parenting skills. Mother requested that the court delay adoption and revocation of her parental rights and allow her to complete this program and earn the right to raise Baby Boy L.
This court requested and received supplemental briefs from Mother’s appointed counsel and from counsel for the DCFS on issues raised in Mother’s April 4, 2007, letter.
ISSUE
The issue is whether Mother has properly raised claims of error which require reversal of the juvenile court’s December 5, 2006, order terminating parental rights.
DISCUSSION
Mother addresses the allegation in the section 300 petition that she failed to complete a court-ordered substance abuse rehabilitation program, which endangered her child’s health, safety and well-being, created a detrimental home environment, and placed him at risk of physical and emotional harm. While Mother concedes the truth of this allegation as of the section 366.26 hearing, she argues that she had continuously applied to numerous rehabilitation programs, and was accepted to a “live-in” program in the Walter Hoving Home in Pasadena on December 4, 2006.
Acceptance by the Walter Hoving Home, however, was “upon availability of space.” Mother had not yet begun a treatment program at the Walter Hoving Home by December 5, 2006, the date her parental rights were terminated. Moreover, as of January 26, 2007, Mother was incarcerated in Lynwood County Jail. Mother has not shown that the juvenile court erroneously adjudicated the case based on the section 300 petition, or erroneously ordered termination of reunification services, nor could she, for the time for her to appeal that order of May 9, 2006, had long since lapsed. An appeal from the most recent order entered in a dependency matter may not challenge prior orders for which statutory time for filing an appeal has passed. (In re Daniel K. (1998) 61 Cal.App.4th 661.)
Mother argued that her pending criminal case would have a favorable outcome and she would be allowed the Proposition 36 drug program. A favorable outcome, however, had not yet been achieved and Mother had not completed a drug program. This court does not consider postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights. (In re Zeth S. (2003) 31 Cal.4th 396, 413.)
Although Mother requested that the court delay adoption and revocation of her parental rights and allow her to complete her drug treatment program and earn the right to raise Baby Boy L., at the section 366.26 hearing the issue of Mother’s reunification with Baby Boy L. was no longer before the juvenile court. In a section 366.26 hearing, a parent’s interest in reunification has ceased to be an issue, and the child’s interest in a stable, permanent placement becomes paramount. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) The issues at a section 366.26 selection and implementation hearing are generally limited to (1) whether the child is adoptable and (2) whether there is a statutory exception to adoption. (In re Matthew Z. (2000) 80 Cal.App.4th 545, 552.)
Mother does not challenge the finding that Baby Boy L. was adoptable. No exceptions in section 366.26, subdivision (c), apply. To satisfy the only possible exception in subdivision (c)(1), Mother would have to show she had “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parent has the burden of proving that termination would be detrimental to the child under this statutory exception. (In re Jasmine D., supra 78 Cal.App.4th at p. 1350.) Mother had not seen, visited, or had any contact with Baby Boy L. since he was detained from her two days after his birth. Mother had not appeared at any hearings in Baby Boy L.’s dependency case. There was no evidence that Baby Boy L. had any relationship with Mother or that he would benefit from continuing that relationship. Where a parent has failed to reunify with her child and the juvenile court has found that the child is likely to be adopted, the burden shifts to the parent to show exceptional circumstances militating against termination of the parent’s rights to child. (In re Brittany C. (1999) 76 Cal.App.4th 847; see In re Derek W. (1999) 73 Cal.App.4th 823.) Mother has not met this burden.
Mother did not appear, and neither she nor her attorney made any evidentiary showing or legal challenge, at the December 5, 2006, hearing in which her parental rights were terminated. Thus she forfeited any claim of error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) In any case, the evidence does not show error in the juvenile court’s findings that Baby Boy L. was adoptable and that no section 366.26, subdivision (c), exception to adoption applied. We therefore affirm the May 5, 2006, order.
DISPOSITION
The May 5, 2006, order is affirmed.
We concur: CROSKEY, J., Acting P. J., ALDRICH, J.